Winner, American Bar Association Silver Gavel Award

Greatest Supreme Court cases from Kentucky

In a series of stories beginning today, The Courier-Journal profiles eight important Supreme Court cases from Kentucky that have shaped the law of the land. Since the U.S. Constitution was written 200 years ago, Kentuckians have helped define its meaning.

First of eight parts

Willis Lago's freedom

"A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand ... of the state from which he fled, be delivered ... to the state having jurisdiction of the crime." - Article IV, VS. Constitution

By ANDREW WOLFSON Staff Writer

The year was 1861 and the nation stood on the brink of civil war. The issue was slavery, and it was tearing the country apart. The War Between the States was a few months off, but one small battle already raged between Kentucky and Ohio.

At its center was a free black man named Willis Lago. Lago was charged with helping a slave escape from her owner in Woodford County, Ky. He then fled to Ohio. The case seemed routine.

Kentucky asked the governor of Ohio to return Lago for prosecution, as it would any fugitive, under the Constitution's Extradition Clause. The way Kentucky saw it, the clause couldn't be clearer: Returning a fugitive is mandatory. That seemed to be what the framers had in mind when they drafted the Constitution in 1787.

They realized that nothing would wreak more havoc in the new union than allowing criminals to escape justice by simply slipping across borders into other states. But when Kentucky asked Ohio to send Lago back for trial, Ohio wouldn't hear it.

A free state, Ohio didn't recognize the crime for which Lago stood charged helping a slave escape. That wasn't a crime in Ohio, Gov. William Dennison said, nor was it so regarded by "civilized nations." Dennison's response enraged Kentucky Gov. Beriah Magoffin.

For one thing, the legality of slavery long had been recognized, he admonished Dennison in an angry letter. For another, Magoffin stormed, how could Ohio be so ungrateful after Kentucky had saved it decades earlier from attacks by Indian "savages"?

But that was beside the point. The Constitution, Magoffin insisted, required states to return fugitives regardless of the nature of their crimes. If the obligations of the Constitution may be avoided, he concluded, the Constitution is a "myth."

The lines were drawn, the positions set in Kentucky vs. Dennison. Kentucky had no place to turn but the U.S. Supreme Court. Both sides presented valid arguments. If each state were free to Judge the morality of its neighbors' laws, it would generate never-ending disputes and ill will, Kentucky argued.

The federal courts had to step in and enforce the Extradition Clause. But Ohio countered with conscience and history. For centuries, nations had recognized that when people flee from political persecution, they should be granted asylum. In Ohio's view, Willis Lago was a victim of such persecution.

On March 14, 1861, just a month before the fall of Fort Sumpter, the Supreme Court announced its decision. The court rejected Ohio's claim that it should be allowed to judge the morality of Kentucky's slave laws. And it agreed with Kentucky that governors have a duty to return fugitives.

But it said that neither the federal government nor the federal courts could compel states to extradite or perform any other duty, for that matter.

"When the Constitution was framed, it was confidently believed that a sense of justice and mutual interest would insure a faithful execution of this provision," the court said of the Extradition Clause. "But if the governor of Ohio refused to discharge this duty, there is no power to compel him."

The duty Jo return criminal defendants would be left to the "fidelity" of the states, the court decided. Willis Lago would go free.

Postscript:

Willis Lago settled in Ohio, living for a time on Third Street in Cincinnati. A Woodford County judge found that Lago probably had helped slave Charlotte Dowery escape from her owner, Claiborne Nuckols. But Lago never was tried for the crime, which could have landed him in prison for up to 20 years.

Shortly after her escape, Dowery was returned to Nuckols. However, Dowery would have been freed again on Jan. 1, 1863, at the latest, when President Abraham Lincoln emancipated the slaves.

Nuckols lost one of his five sons in the Civil War, and died himself in 1878. The fifth generation of the Nuckols family still farms his land today.

Reversing course As law professors like to say, Kentucky vs. Dennison produced a "good result" Lago's freedom but made bad law.

For 126 years, the case stood as the law of the land and created havoc in extraditions. When faced with controversial requests for fugitives, governors simply could ignore them. Although most requests were granted routinely, some were resisted, especially in cases of parents accused of kidnapping children in custody battles, or matters with political or racial overtones.

One such case just this year finally prompted the Supreme Court to reverse the position taken in Kentucky vs. Dennison. It centered on Ronald Calder, a federal air-traffic controller who was working in Puerto Rico in 1981 when he killed a pregnant woman by running over her three times with his car.

Calder was charged with murder in San Juan, but jumped bond and fled to his family home in Iowa. The governor of Puerto Rico requested Calder's extradition, but two Iowa governors in succession refused it.

Among other points, Calder's lawyer argued that a white American couldn't get a fair trial in Puerto Rico. Puerto Rico sued in federal court to force Iowa to give Calder up, but lost. The judge said he was bound by Kentucky vs. Dennison.

Puerto Rico then took its case to the Supreme Court, which decided that federal courts can order states to return wanted fugitives. Ironically, Justice Thurgood Marshall, the only black in the court's history, wrote the unanimous decision overturning the ruling that had shielded a black man from extradition.

"Kentucky vs. Dennison is the product of another time," Marshall said. In 1861, when the Dennison case was considered, eight Southern states already had seceded from the union, and the power of the federal government was at its lowest ebb.

Not surprisingly, Marshall said, the Supreme Court decided that the federal courts were powerless to make state officials do anything.

But by 1987, Marshall said, it had been a "long settled principle" that federal courts can make state officials abide by the Constitution. Federal judges, for example, can order states to halt discrimination in their schools and cruel and unusual punishment in their prisons. The proposition announced in Kentucky vs. Dennison, Marshall concluded, "can stand no longer."

Coach Bobby Knight.

The reversal of the old Kentucky case left fugitives in the lurch, and none more than one prominent Indiana resident Indiana University basketball coach Bobby Knight. Knight left Puerto Rico after striking a policeman during the 1979 Pan American Games, then was convicted in absentia and handed a six-month sentence.

This June, when the Supreme Court's decision appeared to open the door to his possible extradition, officials in Puerto Rico announced they were considering seeking his return.

In July, in a letter published in the San Juan newspaper 1 Mundo, Knight apologized to the people of Puerto Rico for the "misunderstanding" surrounding the 1979 incident. But whether his apology will do any good isn't clear. Gov. Rafael Hernandez Colon of Puerto Rico has not decided whether he will try to force the extradition of the fugitive from Bloomington.

Tomorrow U.S. vs. Reese, 1876: A freed slave is turned away from the polls in Lexington.

1876 William Garner's vote

Second in a series of stories commemorating the 200th anniversary of the United States Constitution

"The right of citizens ... to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." 15th Amendment, U.S. Constitution

By ANDREW WOLFSON Staff Writer

When former slave William Garner set out to vote in Lexington, Ky., in 1873, he had every reason to believe he'd be allowed to cast his ballot. Just three years earlier, when President Ulysses Grant proclaimed the 15th Amendment's ratification, he said it "at once" had turned four million blacks into voters.

Congress also had joined the act, making it a crime for local officials to bar "otherwise qualified" citizens from voting because of their race.

Garner, a bricklayer, met two of Lexington's qualifications for voting: He'd lived in the city for at least one year and in Kentucky for at least two. But when Garner tried to meet a third requirement the payment of a $1.50 poll tax Lexington's tax collector wouldn't accept his money because he was black.

And when Garner went to the polls, inspectors refused to accept his vote because he hadn't paid the tax. It was just the kind of hanky-panky that Congress had intended to forbid.

A federal grand jury charged election inspectors Hiram Reese and Matthew Foushee with violating the voting act passed by Congress. If convicted, they faced up to one year in jail and fines of up to $500.

But more important, their conviction would send a message to local officials across the nation that tampering with freedmen's right to vote would not be tolerated. The first round went against Garner.

The indictments against the two election officers were dismissed in federal court in Kentucky. But the U.S. Supreme Court agreed to hear the government's appeal of U.S. vs. Reese.

Would the court allow federal officials enough power to enforce the right to vote that the 15th Amendment had seemed to create, or leave states free to evade it?

The court focused narrowly on Congress' voting act and whether it went too far in enforcing the 15th Amendment. The first two sections of the act made it illegal for local officials to keep residents from qualifying to vote "on account of race or color." In other words, if residents had to pay a tax to vote, officials couldn't refuse their money because of race. The court found no quarrel with this.

But it was troubled with the next two sections, which made it illegal to bar residents from voting if they had tried to qualify. These sections didn't repeat the magic words, "on account of race and color." And because the sections didn't confine themselves strictly to racial discrimination, the court said they were overly broad and unconstitutional.

The court threw out the entire act.

Historians later denounced what they considered the court's quibbling, narrow-spirited reading of the law. In a lone dissent, Justice Ward Hunt also assailed what he described as a hairsplitting interpretation. Congress clearly had intended the entire act to protect voters against racial discrimination, he said. "The intention of the Congress on this subject is too plain to be discussed," he wrote. B ut the majority didn't see it. Ruling 8-1, the court found that Congress had exceeded its power to regulate the conduct of state and local elections. The 15th Amendment, the court said, did not confer the right to vote upon anyone. It merely prevented states from giving preference "to one citizen . . . over another on account of race."

Postscript A crippling blow

The court's ruling meant that Reese and Foushee would not be tried. It meant that the 1873 Lexington election was valid. And it meant that William Garner could not vote. But above all, historians say, U.S. vs. Reese rendered the 15th Amendment virtually worthless.

It crippled the ability of the federal government to protect blacks right to vote. And by its pinched interpretation of the amendment, the court made it possible for states to deny the right to vote on any ground except race. Southern states found plenty of grounds that excluded many blacks, including poll taxes, literacy tests and "grandfather laws" which in effect prevented residents from voting if their grandfathers had not.

Because the provisions didn't bar blacks from voting specifically because of race, the Supreme Court let them stand for many years. In the hundred years after Garner's case, the Supreme Court and Congress only gradually struck down the restrictions.

The last obstacle to black voters, literacy tests did not fall completely until 1970, when Congress forbade them as a condition of voting.

What went wrong with the 15th Amendment? When President Ulysses Grant proclaimed the 15th Amendment's ratification, he welcomed 4 million black voters. Why did the Supreme Court construe it so narrowly in the Lexington case? When the amendment was ratified in March 1870, blacks celebrated it as their salvation. The Republican Party, the party of Abraham Lincoln, rejoiced at the prospect of winning millions more voters.

But Democrats bitterly resented the intrusion of the federal government in local elections. And they waited for the chance to scuttle the amendment. By 1876, when the Supreme Court first looked at the amendment, in the Lexington case, the Reconstruction era was ending and the nation had drifted away from the ideals of equality, one of the Issues over which the Civil War had been fought.

"The mood of the country was, 'The war is over and passed, let's not rock the boat,"' said Mary Tachau, a history professor at the University of Louisville. Faced with an influx of immigrants who threatened their own political power, Northern Republicans had come to have a greater sympathy for the pl ight of Democrats in the South. These factors all influenced the Supreme Court, Tachau said. "The court completely avoided the intent of the 15th Amendment, which was to enfranchise blacks," she said. "It could have so easily gone the other way."

The principal players Hiram "Buck" Reese, who was clerk of the Lexington city council and a clerk for a hemp manufacturer, died on March 6, 1897. Matthew Foushee, a house painter and paper hanger, was elected Lexington's assessor in 1881, and held that job until his death on Dec. 30, 1901.

Little is known about William Garner, the man who was not allowed to vote, other than his occupation and his address, 198 Mulberry, which is now known in Lexington as North Limestone Street.

Some Kentuckians stubbornly resisted blacks' efforts to vote.

Unlike 29 other states, Kentucky did not ratify the 15th Amendment when it was proposed. Kentucky's General Assembly thought the measure stunk. In 1869, the state House of Representatives voted it down 80-5, the Senate, 27-6. After the amendment was approved by the required three-quarters of the states and was attached to the Constitution without Kentucky's signature, some of the state's newspapers didn't like it any better.

The rabidly racist Kentucky Gazette of Lexington suggested forbidding the vote to anyone "who has wool or kinky hair on his scalp." In an editorial titled "A Short Epistle to Sambo," The Courier-Journal's Henry Watterson advised blacks to stay out of politics.

Several Kentucky cities tried to evade the amendment. Paris and Nicholasville redrew their boundaries, placing black neighborhoods outside the city. Mount Sterling, Eminence and a few other cities began requiring voters to pay a poll tax before they could vote.

In Danville, where residents had to own property within the city to vote, a group of clever Democrats sold 4-inch-wide slivers of land to white farmers in the outlying county so they could qualify to vote.

Nowhere did antagonism toward the 15th Amendment run higher than in Lexington, one of the few places in Kentucky where a coalition of blacks and their Republican allies threatened the Democrats' rule.

First, Lexington moved its vote up a month so it would fall before the amendment's proclamation. Then it extended the terms of city fathers to postpone the inevitable black vote. The day before blacks finally got to vote, in 1873, the Gazette declared "the town might as well be burned down as to be suffered to go into the hands of the Negro rabble and their allies."

On Election Day, the day William Garner reported to the polls, officials simply refused to let many blacks vote, The Cincinnati Commercial reported. "The truth is that it was predetermined that the Negroes would not vote and instructions not to receive their ballots were precise and positive," the paper said.

When the Democrats in Lexington survived reelection, the Gazette sarcastically observed, "Now that we have stamped out smallpox and escaped Negro rule, Lexington can rejoice and enjoy a season of great prosperity."

But such resistance was confined to only a small number of Kentucky communities. Most counties readily accepted the first black vote, partly because blacks were such a small minority that they posed no threat. Blacks accounted for only about 20 percent of the state's population, and half lived in only eight counties. The Democratic majority was safe.

Although some cities continued to use poll taxes to keep blacks from voting, measures such as literacy tests, which long endured in the Deep South, never gained a foothold in Kentucky. Postscript: Catching up with history 106 years later, Kentucky finally got around to ratifying the 15th Amendment along with two other amendments from the Civil War era in 1976.

Tomorrow Buchanan vs. Warley, 1917: A Louisville man tries to sell his property, but a Draconian segregation law stands in the way.

1917 William Warley's property Third in a series of stories commemorating the 200th anniversary of the United States Constitution

"No state shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person ... the equal protection of the law." - 14th Amendment, VS. Constitution.

By ANDREW WOLFSON Staff Writer

The year was 1917, and for three years Louisville's Draconian housing-segregation law had been on the books. To prevent "conflict between the white and colored races," the city had barred people of either race from moving to blocks where the majority of residents were the opposite color. For city fathers, the ordinance scarcely needed defending.

It was essential to prevent the "amalgamation of the races," they said, and the inevitable decline of property values when blacks moved next door to whites.

The law's legality seemed beyond question too. The courts repeatedly had condoned the segregation of schools and railroad cars, as well as measures barring the races from intermarrying.

As for the law's impact on blacks, Louisville city attorney Pendleton Beckley explained: "There is nothing in the law to prevent the building up of new Negro sections. The improvement of the Negro's condition is limited only by his own character and efforts."

But Louisville's fledgling chapter of the National Association for the Advancement of Colored People assailed the law, as did a white real-estate agent named Charles Buchanan. Together, they agreed to try to test it.

Buchanan wanted to sell a vacant lot at 37th and Pflanz Avenue, near the Ohio River in Louisville's Portland neighborhood, on a block that had ten residents eight whites and two blacks. Because the two blacks lived next to his lot, he had trouble finding a white buyer. He finally agreed to sell to a black man, postal carrier William Warley.

But in their contract, Warley, who also edited a black newspaper, said he'd pay for the lot only if he could live on the property. Because of the segregation law, of course, Warley could not move to the block. To challenge the law, Buchanan sued Warley to enforce their contract, but the law passed muster in Jefferson Circuit Court and at the state Court of Appeals, then Kentucky's highest court.

Left with nowhere to turn, Buchanan and Warley presented their case to the U.S. Supreme Court, and the justices agreed to hear it. With similar laws in place in St. Louis, Baltimore and Richmond, Va., the case captured national attention. Lawyers on both sides of the "race problem" filed long briefs with the court.

Buchanan's chief complaint was that the city had infringed on his right to sell his property freely. He also claimed the city was violating the rights of blacks to own property and live where they choose.

If the law were upheld, he said, there would be no limit to possible discrimination. "An attempt to segregate Irish front Jews, foreign from native citizens, Catholics from Protestants, would be fully as justifiable In communities where there is feeling between them."

The law's stated goal may have been to "preserve the peace," Buchanan said. But its true purpose "was to place the Negro, however industrious, thrifty and well-educated, in as inferior a position as possible, and to violate the spirit of the Fourteenth Amendment."

In the wake of the Civil War, the ' 14th Amendment was one of three measures grafted onto the Constitution mainly to protect newly freed slaves. The 13th Amendment abolished Slav-ery. The 15 th said the right to vote could not be denied because of race.' The 14th said no state could deprive -any person of life, liberty or property I without due process of law, nor deny any person the equal protection of the law.

Louisville's lawyers Insisted their law applied equally: Whites were barred from moving (to black blocks, just as blacks were prohibited from doing the reverse. In fact, the lawyers said, the law would improve black neighborhoods by "ridding Negro sections of that undesirable class of white people which is frequently found in such localities."

Beckley, the city attorney, insisted: that the law would affect only "that rel-, atively small percentage of Negroes who, to gratify their newborn social aspirations, seek to move into white neighborhoods." vs. Ferguson,

The case put the Supreme Court, in a pickle. Just 21 years earlier, in the landmark Plessy v. Ferguson, the court had upheld a Louisiana law that ordered railroads to provide separate but equal cars for white and black passengers. Just nine years earlier, the court had upheld a Kentucky law that banned even private schools from teaching , blacks and whites together.

But the court decided in Buchanan vs. Warley that Louisville's brand of segregation was different. In Louisiana, black passengers still could ride the trains. In Kentucky, black schoolchildren still could go to school. But in Louisville, the court ruled both blacks and whites had lost their right to buy and sell property freely.

"That there exists a serious problem arising from race hostility may be freely admitted,- the court said. "But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges."

If the Louisville law's only effect had been to segregate the races, the court said, that would have been permissible. But the law had gone too far. Without "due process of law," it interfered with the right of its citizens both black and white to buy and sell property. On Nov. 5, 1917, the Louisville law was struck down.

William Warley could not be barred from moving to the lot he bought from Charles Buchanan.

Postscript

In the first year that the Louisville segregation law was in effect, at least two blacks were arrested and charged with violating it. The law carried penalties of $5 to $50 for each day of illegal occupancy. Arthur Harris, for example, was arrested in August 1914 for moving to a white block, the 600 4 block of South 19th Street. He was fined $20 and ordered to move.

A fiery militant, William Warley never moved on to Pflanz Avenue, despite winning the right to do so. His victory at the Supreme Court, however, was , one of his prouder moments. Two days after the decision, his first child was born, and she was named in its honor. She was called Victoria.

But speaking out against segregation cost him his job at the post office. By all accounts, he was a fiery militant and a man ahead of his time. In 1914, Warley led a black boycott of Louisville's National Theater, which forced blacks to enter by a rear door.

When some blacks refused to go along, he printed their names in his newspaper, The Louisville News.

In the 1920s, he intervened to prevent lynchings in rural Kentucky several times risking his own neck by investigating allegations of the crimes. His radical style eventually brought the enmity of both whites and more conservative blacks, says historian George Wright author of "Life Behind A Veil: Blacks in Louisville 1865-1930."

In 1929, when Warley sued Louisville to force it to integrate city parks, he could not raise enough money for an appeal to the Supreme Court. He had trouble keeping his paper afloat often having to produce it alone.

His trials were compounded by a drinking problem, Wright says, which worsened in the 1930s, leaving him virtually bankrupt. He and his newspaper died in 1945. Two daughters survive him, including Victoria Warley Perkins, of Altamonte Springs, Fla. She said she believes blacks in Louisville never gave her father the credit he deserved. But she said he was never bitter.

Reaction to Buchanan vs. Warley was mixed. In an editorial, The Louisville Times said the Supreme Court's ruling "brings considerable disappointment because we sincerely believed that such a law would work to the advantage of the white people and the Negroes."

But the decision set off black victory rallies in Louisville, St. Louis and and other cities. "I cannot help thinking this is the most important decision since the Dred Scott case," said NAACP national president Moorfleld Storey, referring to the landmark 1857 ruling in which the Supreme Court said black slaves had no rights as citizens. "And happily this time it is the right way."

Buchanan vs. Warley, Wright said, probably did more for the NAACP, which argued and won the case, than for ending residential segregation.

The death of Louisville's housing-segregation law opened more neighborhoods to mlddle-and upper-class blacks, historian Wright says. But poor blacks continued to live in congested, crime-infested neighborhoods.

Blacks moved westward in Louisville, but for years, only as far as 30th Street Some white residents changed the names of their streets there as a symbolic gesture to set their neighborhoods apart a smaller number resorted to window-smashing, dynamite and other sorts of intimidation as blacks moved west.

One speaker told a newly formed white neighborhood group in 1927 that their goal should be to make "a Negro living in the West End as comfortable as if he was living in hell."

Now a cemetery Since Charles Buchanan first tried to sell his lot at 37th and Pflanz in 1914, the parcel has changed hands seven times. The Louisville NAACP chapter owned it from 1919 to 1924; then it passed to a succession of private owners. In April 1983, the city of Louisville acquired the lot for an addition to the Portland Cemetery. It is now vacant covered with a carpet of closely cut grass, waiting for its first grave.

Badges of slavery

The court's decision banned laws that segregated neighborhoods by race, but it led to a new form of discrimination the restrictive covenant Under such covenants, neighbors agreed privately to sell or rent their homes only to people of the same race. The Supreme Court upheld such agreements in 1926, ruling that the Constitution protected only against discrimination by the state, not individuals.

But in 1948, a black couple in Missouri bought a home to which a restrictive covenant applied, and a white neighbor sued to stop them from moving in. The Supreme Court ruled that the courts could not enforce the covenants without violating the 14th Amendment

Eventually, state and local governments passed laws barring private discrimination in the sale and rental of housing. In 1968, Kentucky enacted its fair-housing law and Congress enacted the first federal fair-housing law.

That same year, the Supreme Court reinforced the new federal law when it ruled that Congress really had intended to bar such discrimination as early as 1866, when it passed the first Civil Rights Act.

The court's ruling came in the case of a white real-estate agent who refused to sell a home in suburban St. Louis to Joseph Lee Jones because he was black. The court decided that Congress had the power to prohibit both individual and state discrimination in housing by virtue of the 13th Amendment which the court said had been adopted to remove the "badges of slavery" from the nation's blacks.

Tomorrow: Thompson vs. Louisville, 1960: A Louisville loitering case goes from the nation's lowest court to the highest

Sam Thompson's innocence

Fourth in a series of stories commemorating the 200th anniversary of the United States Constitution

No state shall ... deprive any person of life, liberty, or property, without due process of law ..." 14th Amendment, U.S. Constitution.

By ANDREW WOLFSON Staff Writer

With more than 70 arrests to his name for such offenses as vagrancy and public drunkenness, Sam Thompson seemed an unlikely figure to be cast in a lofty battle over justice. He was hardly a model citizen.

In 1958 alone, the 44-year-old Buechel handyman was convicted of eight offenses, and the next year rang in as if it would continue much the same. Thompson was picked up for loitering and disorderly conduct in January 1959, and was fined $10 on each charge.

It didn't seem to have the makings of a federal case or even much of one in Louisville Police Court. But before Thompson and his lawyer were finished, Thompson vs. the City of Louisville would be known throughout the land. The humble case would stand for two mighty propositions that no one can be punished without evidence, and that nobody's case is too unimportant for the nation's highest court.

The case of "Shufflin Sam" began on Jan. 24, 1959, when Thompson stopped in at Louisville's Liberty End Cafe. To pass the time, he dropped a coin in the jukebox, then shuffled his foot to the rhythm of the music.

Working their usual beat, two policemen sauntered in, making a routine check. When they saw Thompson "shuffling" on the dance floor and found that he apparently had not bought food or drink, they asked him to account for himself.

He said he was waiting for the bus. But the officers accused him of dancing in an establishment that had no license for dancing, and charged him with loitering. When Thompson protested that charge, he also was charged with disorderly conduct. Normally meek, Thompson was not given to challenging authority.

But after an earlier arrest, he'd decided he'd had enough. "If you're continually beaten on the shoulder, that shoulder gets tired after , a while," he explained later. "I felt something should be done about it."

What he did was call Dr. Wynant Dean, whose family had employed him off and on for 30 years. And Dean found Thompson a brilliant lawyer named Louis Lusky.

Lusky launched his defense of Thompson in Louisville Police Court, where he demanded a trial before Judge Hugo Taustine. Sam Thompson, left, was arrested for who he was not for what he did lawyer Louis Lusky insisted. Lusky insisted there wasn't a shred of evidence that Thompson had committed a crime. Thompson had been arrested because of who he was, not what he did, Lusky insisted.

He'd been arrested simply because he'd been arrested so many times before. Taustine wasn't persuaded, and slapped the defendant with two $10 fines.

That should have been the end of it, for Kentucky law then didn't allow appeals of fines of less than $20. But that didn't sit well with Lusky or the Kentucky chapter of the American Civil Liberties Union, which joined the case; there had to be somewhere else to turn.

If no state court would hear Thompson's plea, Lusky decided, he'd go to the top: He'd ask the U.S. Supreme Court to hear the appeal.

Some Louisville lawyers scoffed: Appeal a case straight from the nation's lowest court to its highest? It sounded implausible. And there was also the meager nature of Thompson's sentence to consider. Not since 1886 had the Supreme Court agreed to hear a matter in which the stakes were so small.

But Lusky was not dissuaded. "The time has not yet come when Americans can be dealt with as economic men," he argued in his plea to the court. "Their needs and their rights are not measurable in purely economic terms. "One of their needs is justice, and they have a legal right to receive it."

Against great odds, the Supreme Court which agreed to hear only 122 of the 1,047 cases it was offered in 1959 decided to review the case of "Shufflin' Sam."

Lusky, who once had been a law clerk for Supreme Court Justice Harlan Stone, reiterated his position that Thompson had committed no crime. "The fact that Thompson lingered in the cafe . . . as he waited for the bus is no evidence of criminal loafing," he said. "If that rather vague term could be stretched to cover such conduct, half the population of Louisville would be criminals."

The court hammered away at Louisville's lawyer, Herman Frick, an assistant city attorney who had previously argued only one case before the court. "Is a man guilty of disorderly conduct and loitering simply because he shuffles his foot to music as he waits for a bus on a cold winter night?" Justice Charles Whittaker asked.

"That's very dramatic," Frick said, "but Thompson was doing a shuffle dance." "Is shuffling illegal in Louisville?" Justice Felix Frankfurter asked. "No sir," Frick replied, "but the tavern owner's license didn't permit dancing, and the license holder is responsible."

If so, Frankfurter said, the city should have charged the tavern owner, not Thompson.

"Suppose Thompson had gone into a department store, shuffled his feet for a half- hour, and not bought anything?" Chief Justice Earl Warren asked. "Would he be guilty of loitering? "If so," Warren said, answering his own question, "there would be a lot of women in jail."

Warren also grilled Frick on the disorderly conduct charge. "Do you really put a man in jail for arguing with a police officer?" he asked. "Arguments tend to lead to disorder," Frick explained. "You are making an argument now, aren't you?." Justice William Brennan said. "Do you see any signs of disorder?" '

The court found no evidence that Thompson had been disorderly or that he had loitered. Louisville's loitering law made It illegal for any person who could not account for himself satisfactorily to sleep, lie, loaf or trespass in a building without the owner's permission.

But the bar manager testified that Thompson was welcome in the Liberty End Cafe. And Thompson could account for himself: He said he was waiting for a bus, and he had both change and a bus schedule in his pocket to prove it.

On March 21, 1960, the Supreme Court reversed Thompson's convictions. And it pronounced a principle that seemed obvious to laymen and lawyers alike, but which the court had never enunciated: "It is a violation of due process," the court said, "to convict and punish a man without evidence of his guilt."

Postscript

Dressed in a spanking new suit and tie, Sam Thompson marched back into Louisville Police Court three months later, and Judge Taustlne was forced to dismiss the charges against him.

Thompson could not celebrate for long; he was marched right back into jail the same day to complete a six-month sentence on another conviction, for carrying a concealed deadly weapon.

But in Louisville and across the nation, his case was hailed as a triumph of justice and a signal that fairness must prevail even in the lowest courts.

"Future Sam Thompsons will never be quite as defenseless before hasty policeman and indifferent prosecutors as they have been heretofore," The Courier-Journal said in an editorial.

The case marked the first time since the 14th Amendment's ratification in 1868 that the Supreme Court had set aside a state court conviction for the simple reason that there was no evidence to support the charge.

In Louisville, while the case was still pending, Law ensures a fair shake The "due process" clause of the 14th Amendment has been the subject of more Supreme Court cases than any other part of the Constitution. "Due process" means simply that laws must not be arbitrary and must be enforced fairly.

The Fifth Amendment, ratified with the rest of the Bill of Rights in 1791, says the federal government cannot deprive citizens of "life, liberty or property without due process of law." The 14th Amendment, added 77 years later, says states cannot deprive citizens of life, liberty or property without due process.

Starting in 1925, the Supreme Court gradually has expanded the scope of the clause. In a series of cases, the court has decided that if citizens are to have due process, they must be protected against unconstitutional behavior by the states not just the federal government.

For example, in 1961, in Mapp vs. Ohio, the court said evidence obtained in violation of the Fourth Amendment guarantee against unreasonable search and seizures must be excluded in both state and federal trials. And in 1963, in Gideon vs. Wainwright, the court said the due process clause of the 14th Amendment extends to state as well as federal felony defendants the Sixth Amendment guarantee to help from a lawyer.

The Board of Aldermen reconsidered the city's loitering law, deciding residents should no longer be required to account for themselves. And the 1962 General Assembly quietly did away with the law that had kept offenders slapped with small fines or jail terms from appealing to higher state courts.

But beyond changing laws, lawyers and law professors say, Thompson's case helped end a practice that had been pervasive in the nation the arrest and conviction of people without cause, especially people on the fringes of society.

"Police had used vagrancy and loitering laws as a catchall for making arrests," said lawyer Frank Haddad Jr., who began practicing in Louisville in 1952. "If they didn't like the way you walked, they'd arrest you." After the Supreme Court decision, Haddad said, "police knew they'd have to answer for those arrests and they stopped making them routinely."

In the 27 years since it was decided, the case of "Shufflin' Sam" also has served as an inspiration a beacon for lawyers fighting on behalf of clients who stand on the margin of society.

"Thompson gave promise that there was at least one court in the land that would come to the rescue of people at the bottom," said Professor Alvin Goldman of the University of Kentucky School of Law. "It showed that at least one would listen the Supreme Court."

The principal players

Louis Lusky, 72, joined the faculty of Columbia University in 1963 and still teaches there as a professor emeritus of law. Herman Frick, 71, retired from the practice of law in 1981 and lives in Crestwood.

Former Police Court Judge Hugo Taustine left the bench in 1961 and resumed full-time law practice. He died June 24 at a Louisville nursing home. He was 87.

After his victory at the Supreme Court, Sam Thompson told Reader's Digest, "When I see police now, we just say hello to each other, and that's all."

But in the three years after his Supreme Court triumph, Thompson was arrested five times. And if anything, his life went downhill.

"He may have made the case, but the case destroyed the man," said Dr. Wynant Dean, 73, who retired from practicing medicine but still lives in Louisville. "He was lionized by his friends for his great triumph, but it was something he couldn't handle."

With his newfound celebrity, Thompson got the chance to drink more often, Dean said. And the more often he drank, the more often he ended up in jail.

"He was a very intelligent man, but he just never had the opportunity to develop himself," Dean said. In 1973, a Hollywood producer called The Courier-Journal trying to locate Thompson. The producer was planning a made-for-TV movie, tentatively titled, "Shufflin' Sam and the Supreme Court."

A reporter who searched for Thompson learned that he had died in obscurity at General Hospital a year before. His body was donated to the University of Louisville medical school. The movie about his case was never made.

Tomorrow: Branzburg vs. Hayes, 1972: A reporter tries to shield the identities of two drug dealers who let him write about their operation

1972 Paul Branzburg's secret

Fifth in a series of stories commemorating the 200th anniversary of the United States Constitution

"Congress shall make no law ... abridging the freedom of speech, or of the press ..." First Amendment, U.S. Constitution

By ANDREW WOLFSON Staff Writer

When Courier-Journal reporter Paul Branzburg crafted his eyewitness account of a homemade hashish laboratory in November 1969, he hardly thought he had written a blockbuster.

"It was minor-league stuff," he recalled. "Two guys cooking hash."

George Gill, then the paper's managing editor, didn't foresee any problems with "The Hash They Make Isn't Fit To Eat."

"Never in my wildest dreams did I believe it would lead to what followed," he said.

The story began: Larry, a young Louisville hippie, wiped the sweat off his brow ... and put another pot on a stove over which he had been laboring for hours. For over a week, he has been proudly tending his pots and pans. But he also has paused frequently to peek out the door in search of "The Man." Larry and his partner Jack are engaged in a weird business that is a combination of capitalism, chemistry and criminality. They are operating a makeshift laboratory in south-central Louisville that may produce enough hashish, or "hash," to net them up to $5,000 for three weeks of work.

Although editors and reporters regarded Branzburg's piece as nothing more than a good, readable feature, local and federal narcotics agents thought it begged for action. Here was unsolved crime involving an illegal drug.

"Agents wanted to arrest these people and put a stop to it," recalled Edwin Schroering Jr., then Jefferson County's top prosecutor. "But they didn't know where to start." Schroering started by bringing Branzburg before a county grand jury, where he was asked to identify the perpetrators.

The way Schroering saw it, Branzburg, 28, was a witness to a crime, and had the same duty to testify about it as any citizen. - But Branzburg and his editors insisted that if he answered his subpoena, he'd betray the two drug dealers to whom he'd promised anonymity. And more critically, he'd lose the trust of dozens of other drug dealers and petty thieves upon whom the newspaper relied for information about Louisville's burgeoning drug culture.

Schroering took Branzburg before a judge who threatened to throw him in jail if he wouldn't testify. But Branzburg was just as adamant and refused. Before their standoff was resolved, the Branzburg case would become the centerpiece in a national debate over the limits of the First Amendment. It would help decide whether the news media's right to gather news about crime freely and the public's right to read about it outweighs the right of the government to investigate it .

The case would produce what first was thought to be a devastating blow for the nation's news organizations. And it would permanently affect Branzburg, who left Kentucky partly in fear of being jailed. He has not been able to return openly since.

The Branzburg case began on Nov. 25, 1969, in the courtroom of Circuit Judge J. Miles Pound, where Branzburg contended he could protect his sources under the umbrella of Kentucky's reporter "shield law."

That law says no journalist can be forced to divulge to a grand jury the source of any information gathered for a news story. Branzburg said he'd shown a copy of the law to one of the hash makers to win his cooperation.

Schroering had no argument with the shield law, but said it should protect only reporters who have interviewed sources, not reporters who have observed people committing crimes. The newspaper insisted that Schroering's analysis made no sense: If a source tells a reporter he is making hash, for example, doesn't the reporter have a duty to try to confirm that by observing him in action?

Kentucky's Court of Appeals found the newspaper's position alarming, and sided with Schroering.

"Suppose," the court asked, "a newsman should see the president of the United States or governor of the commonwealth assassinated upon the street?"

The decision boded ill for Branzburg, who also faced contempt proceedings in Franklin County because he had refused to identify dozens of sources in a second story. In that story, Branzburg said he had witnessed sources using drugs in the state capital.

Faced with a choice of jail or the grand-jury room, Branzburg turned to the court of last resort, the VS. Supreme Court. The stage was set for Branzburg vs. Hayes, styled after Jefferson Circuit Judge John Hayes, who succeeded Pound.

Before the high court heard the case, Branzburg moved to Michigan partly to avoid the risk of jail if he were to lose his case and joined The Detroit Free Press. At the Supreme Court, his case was joined with those of two other journalists who had refused to cooperate with grand juries. Both of them, Earl Caldwell of The New York Times and Paul Pappas of WTEV-TV in New Bedford, Mass., had been summoned to answer questions about their investigations of the militant Black Panther Party.

Unlike Branzburg, however, neither Caldwell nor Passas had observed a crime.

In Caldwell's case, a federal appeals court in California had upheld the right of reporters in some cases to refuse to help grand juries. The U.S. Justice Department was seeking to reverse that ruling. If upheld by the Supreme Court, the Caldwell ruling would establish for the first time that the First Amendment confers a protective shield on reporters. That would be an important victory for newspaper and broadcasting companies because only 17 states had their own shield laws for reporters, and even in those states, the shields had some holes.

With so much at stake, news organizations, including the three major television networks, flooded the court with briefs. Celebrated journalists such as Walter Cronkite filed their own affidavits on the importance of anonymous sources and keeping them anonymous.

The news media agreed on one thing: Freedom of the press is a hollow concept unless it includes freedom to gather the news. And that freedom, in turn, is hollow if prosecutors are permitted to turn reporters into government investigators by regularly hauling them before grand juries.

But when It came to strategy and solutions, the news organizations split sharply. The Washington Post, the Wall Street Journal and the American Society of Newspaper Editors, among others, urged the court to adopt an "absolute privilege" protecting reporters from ever having to appear before grand Juries, even if it meant some crimes might go unpunished.

But The Courier-Journal and New York Times, along with the networks, suggested a more moderate approach. Reporters could be summoned for grand-jury appearances, they suggested, but only if prosecutors first show that there is compelling need for the information, that they can't get it from anyone but the reporter, and that the reporter knows about a specific crime.

On Aug. 23, 1972, the Supreme Court heard arguments. Schroering appeared for the commonwealth; Edgar Zingman spoke for Branzburg and The Courier-Journal. Both sides left thinking the news media had prevailed.

But four months later, the court ruled 5-4 for the government, rejecting both options advanced by the news media. Writing for the majority, former University of Colorado football star Byron White said Reporters have the same duty as other citizens to help a grand Jury when asked to shed light on a possible crime,

The court did not prohibit the states from protecting reporters under shield laws. But it said, "We cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source on the theory that it is better to write about crime than do something about it.

"The crimes of news sources are no less reprehensible and threatening to the public when witnessed by a reporter than when they are not" Pappas, Caldwell and Branzburg were ordered to go back to their respective grand juries and testify.

The news media had lost a big one, it seemed.

The three reporters never appeared before the grand juries that subpoenaed them. The district attorney who summoned Pappas lost his bid for re-election. Federal prosecutors never bothered to recall Caldwell for testimony about the Black Panthers because by the time the Supreme Court issued its opinion, Caldwell said, most of the party's leaders "were out of the country or in the cemetery."

Branzburg simply refused to return to Jefferson County, and Michigan's governor refused two requests to extradite him.

Although the three journalists never had to testify, Caldwell and Branzburg said the court's ruling restricted the work of the news media. Caldwell, now a columnist for the New York Daily News and commentator for CBS Radio, said the decision has made newspapers more timid. "They don't go where there will be trouble," he said.

In 1973, Branzburg appeared before a U.S. Senate panel that was considering an ultimately unsuccessful proposal for a federal shield law. He told how he once gained the confidence of a Detroit heroin dealer who had information about public corruption, only to have the source refuse to cooperate because of the ruling.

"He told me that he thought that the story would result in my imprisonment for contempt of court," Branzburg said. "And he said if I went to jail, he'd have to have me killed to keep me from talking."

Still, legal scholars say the case hasn't been all bad for the news media, and in many instances it has helped. What has happened, the scholars say, is that when reporters have been brought before grand juries, state court judges have looked for guidance to a concurring opinion in the case written by Justice Lewis Powell.

In his opinion, Powell urged that each case be "Judged by the striking of a proper balance between the freedom of the press and the obligation of all citizens" to help grand juries investigate criminal conduct Powell also urged that judges not let grand jury subpoenas be used simply to harass reporters.

In the wake of the ruling, nine more states have adopted their own shield laws, bringing the number to 26. Some protect reporters from ever appearing before grand juries, while others merely require prosectors to offer a compelling reason for their testimony. Although reporters continue to go to jail occasionally for refusing to testify before grand juries, Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, said the ruling hasn't served the news media badly.

"It has meant that judges must go through a balancing test" she said. "And in many ways, Branzburg has been our savior."

Postscript:

Paul Branzburg retired from journalism In 1974 and now lives in a Detroit suburb. He deals in antique books.

Edwin Schroering Jr., after an unsuccessful run at the Kentucky Supreme Court in 1982, is a Jefferson Circuit Court Judge.

They haven't forgotten each other. Two months after the U.S. Supreme Court decided Branzburg vs. Hayes, Branzburg was sentenced to six months in jail for refusing to return to Kentucky and appear before the Jefferson grand jury. In a letter, Branzburg assured Schroering that his testimony was unnecessary, that the hashish lab was shut down the day his story appeared in 1969. T hat didn't satisfy Schroering. Twice he had Kentucky Gov. Wendell Ford ask the state of Michigan to extradite Branzburg, but Michigan's governor refused.

Branzburg still has not returned, and Schroering says that disappoints him. "I really don't feel that Mr. Branzburg was honest with me," Schroering said recently. "We released him on the condition that he would come back if he lost his case. Well, he lost, and he didn't come back." Louisville detectives said they eventually found the remnants of the laboratory Branzburg wrote about. Through an informant, police say they identified two suspects they believe operated it although neither was found.

Still, Schroering said he is proud of the case and what he said it stands for: "That newspaper reporters are just like anybody else, that they are not above the law."

Branzburg, 46, also said he is proud of the case: "Everybody should have one time in their life when they put their foot down, when they do what they think is right "I feel just as deeply about it now as I did then. The public was far better-served by knowing what was going on in Louisville as far as drugs were concerned than by catching these two guys by way of my testimony."

Branzburg's pride is mixed with sadness that he must avoid Kentucky, where he worked for five years, where he met his wife, but where a contempt order is still pending for his incarceration. "I still have a very warm place in my heart for Kentucky," he said.

Tomorrow Stone vs. Graham, 1980

1980 Claudia Riner's Commandments

Sixth in a series of stories commemorating the 200th anniversary of the United States Constitution

It shall be the duty of the superintendent of public instruction to ensure that a durable, permanent copy of the Ten Commandments be displayed in each public elementary and secondary school classroom in the commonwealth." Kentucky Revised Statutes 158.178

By ANDREW WOLFSON Staff Writer

When conservative state Rep. Claudia Riner wrote the Ten Commandments law in 1978, she felt certain it would pass muster in the courts and live a long and fruitful life. After all, the Commandments are the cornerstone of the laws of Western civilization, she reasoned.

And just because a document has "religious roots" shouldn't inflict it with "constitutional leprosy," she thought.

An image of the tablets from Mount Sinai looks down from the marble walls of the U.S. Supreme Court itself. So who could object if Kentucky public schoolchildren had the chance to read the Commandments each day?

For caution's sake, Riner, a Democrat from Louisville, agreed that the 16-inch-by-20-inch plaques listing the Commandments should be bought with private donations. And each should bear in fine print the message: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States."

The bill breezed through the Kentucky legislature, finding only four opponents apiece in the Senate and the House.

But it did not pass unnoticed by three Louisvillians Patricia Bricking, Martin Perley and Anne Bowers. Bricking, a Roman Catholic with three children in public schools, wanted to see to their religious upbringing herself. Perley, a rabbi, didn't want the state deciding which of at least nine versions of the Ten Commandments to post.

Bowers, a lifelong non-believer, didn't think the government should place any version of the Commandments in the public schools. "They claimed the Ten Commandments wasn't a religious document," Bowers said recently. "That was blatant nonsense."

Bowers, 70, had never made a public issue of her agnosticism. "It was a very private belief and I didn't go around pushing it" But if she was going to respect others' rights, she said, "I wanted my own respected too."

Under the umbrella of the American Civil Liberties Union's Kentucky chapter, Bowers, Perley and Bricking joined forces with two other Louisvillians, Sydell Stone, a Unitarian, and Judith Matheny, a Quaker. They sued James E. Graham, Kentucky's school superintendent, claiming that enforcement of the Ten Commandments law would violate the First Amendment's Establishment Clause.

The outcome of Stone vs. Graham is well-known to many Kentuckians. But many still may wonder how the Supreme Court reached its decision.

How did the court find in one great document, the Constitution, the rationale for barring the states from posting another hallowed text, the Ten Commandments, in the schools?

The specter of government interference in religion loomed large when the Bill of Rights was proposed in 1789. The framers knew that just as their forebears had come to Colonial America to escape religious oppression, once they got here and achieved religious freedom for themselves, some turned and used the power of the state to deny it to their neighbors.

James Madison and Thomas Jefferson drafted the First Amendment's ban against government intervention in religion the phrase "Congress shall make no law respecting the establishment of religion."

Madison wanted to avert the foundation of a national church. "Who does not see that the same authority which can establish Christianity in exclusion of all other religions," he wrote in 1785, "may establish with the same ease any particular sect of Christianity, in exclusion of all other religions?"

Jefferson urged that the First Amendment stand as an absolute "wall" separating government from religion.

The Supreme Court and the nation have never accepted the absolute position advanced by Jefferson. The United States has chaplains in Congress, for example, and the court has said that local governments can exempt churches from taxes.

But while the court has allowed some government support of religious matters for adults, it has strictly barred states from requiring or even permitting religious exercises by children in public schools. In 1962, for example, the court held that school districts could not adopt prayers to be repeated voluntarily by students at the beginning of each school day. And in 1963, it ruled that students could not be required to read Bible verses or the Lord's Prayer.

Boiled down, the court's reasoning for the decisions was this: The states could not require or allow such religious activities without giving preference to one religion over another, or to all religions over none. And parents who entrust their children to public schools should not have to have them taught something that they do not believe.

The court did not close the door to the study of religion or even the Bible in the public schools. But it said such study has to be presented objectively, as part of a secular education program.

The court came up with a three-pronged litmus test to figure whether state laws comply with the Establishment Clause. First, a law must have a secular legislative purpose. Second, its main effect must neither advance nor inhibit religion. And third, the law must not create excessive entanglement of government in religion.

On all three counts, the defenders of Kentucky's Ten Commandments law felt they were on safe ground. The secular purpose of the Ten Commandments seemed beyond question.

The state legislature noted that all of Western civilization had adopted the Commandments as its basic legal code. The law's main effect didn't seem to advance or inhibit religion, either, argued Edward Fossett, who defended the law for the Kentucky Department of Education. "The Commandments are as much a part of our history as the Constitution or other documents," he said.

As for government entanglement, Fossett wrote in a brief: "The government's part begins and ends with hanging the Ten Commandments on the wall. No tax funds are to be expended."

Although religious groups might differ on their choice of language for the Commandments, Fossett wrote, "The difference in the various translations is, for the purpose of display on a wall, so minimal as to be of no consequence." That was one side.

The ACLU's lawyer, William Stone, presented the other. He insisted the real purpose of the Ten Commandments law was to promote religion in the schools. The Commandments are first and foremost a sacred religious text, he said. They proclaim the supremacy of the Lord God, for example, and insist that the Sabbath be kept holy.

When combined with compulsory attendance laws that make students a captive audience, the main effect of posting the Commandments was to advance religion, Stone argued.

By requiring the state to choose which translation of the Commandments to post, the law entangled the government in disputes about the wording of sacred tests, he said. For example, Stone asked, should one familiar commandment read, "Thou Shalt Not Kill" or "Thou Shalt Not Murder"? The former is favored by some religions because it can be read to prohibit all taking of life.

The latter is favored by others because it permits capital punishment or killing in war. How can the state choose one version over another," Stone asked, "without favoring one religion over another?"

The Ten Commandments law made Its first stop In the courts before Franklin Circuit Judge Squire Williams. "Basically, the Ten Commandments is a code of conduct which just happens to be rooted in Judeo-Christian history," he concluded, upholding the law.

Next, the case jumped to the Kentucky Supreme Court, where the six justices who considered it split 3-3, thus affirming the lower court's ruling.

On Nov. 17, 1980, the U.S. Supreme Court announced that it had decided Stone vs. Graham summarily, without oral arguments. "The Ten Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder," the court's 5-4 majority said.

"The Commandments are undeniably a sacred text in the Jewish and Christian faiths," the court continued. "The preeminent purpose for posting the Commandments on schoolroom walls is plainly religious in nature."

The Ten Commandments law found itself impaled on the first prong of the court's three- pronged test. However good it might be for children to obey the Ten Commandments "as a matter of private devotion," the court ruled, "it is not a permissible state objective under the Establishment Clause."

Stone vs. Graham was reversed. The Ten Commandments law was dead.

Postscript

As many Kentuckians may remember, the Supreme Court's decision only added fuel to the Ten Commandments fire. The problem: The court didn't say what should be done with the Ten Commandments plaques already posted on the walls of 21,000 Kentucky classrooms.

The ACLU said take them down. Claudia Riner and the Kentucky Heritage Foundation said keep them up.

The foundation, a tax-exempt group launched by Riner and her husband, the Rev. Tom Riner, to lead the Commandments drive, contended the Supreme Court's ruling only meant the state couldn't require schools to post the Commandments not that schools couldn't post them voluntarily after getting them as gifts.

Drawing the wrath of fundamentalists, Attorney General Steve Beshear advised otherwise. His advisory opinion was resisted across the state. Some school boards simply voted to ignore it. Others sought ways to get around it. Threatened by the ACLU with costly lawsuits, the recalcitrant counties have thrown in the towel, except, says the ACLU, for Perry County.

The Ten Commandments still hang on school walls there, and school board members vow they will go to court or jail if necessary to keep from having to remove them. "It's time for Christian people to stand up for more morals in the school system," board member Charles Campbell said. "The Ten Commandments were good enough for Moses, and I believe they need to be taught."

Lasting significance

Stone vs. Graham has earned a place as an important footnote in texts on religion and the First Amendment Constitutional scholars say its lasting significance is the Supreme Court's finding that states can't make something secular such as the Ten Commandments simply by saying it is secular.

That principle figured into the court's decision in June when it struck down Louisiana's law that required the teaching of creation science along with the theory of evolution. The Louisiana legislature claimed the law's purpose was to advance "academic freedom," not religion. The Supreme Court disagreed.

The principal players

Edward Fossett, who defended the Commandments law, transferred to the state Department of Insurance in 1983. A devout Christian, he said he kept one of the Ten Commandment plaques as a souvenir and posted it on the wall of his bedroom.

Claudia Riner left the Kentucky House of Representatives after her second term and was replaced by her husband. She said she believes it was an "injustice to the children" to "censor" the Commandments. But she predicted that somehow, someday, the Commandments will return to the classroom walls.

William Stone, who won the Commandments case, practices law in Louisville. "I never had any doubt in my mind that we had a winnable case," he said, "but I was shocked we'd have to go all the way to the Supreme Court to win it."

Plaintiff Judith Matheny dropped out of the case before it reached the Supreme Court. The other plaintiffs all still live in Louisville, including Sydell Stone, after whom the case was named.

Plaintiff Anne Bowers, 76, is a veteran activist. She marched and lobbied for the 1977 strip- mine act and for the Equal Rights Amendment. But she says she is proudest of her role in Stone vs. Graham.

"The people think democracy means majority rule, but it also means minorities have rights," she said. "And as a member of a minority, I take the First Amendment very seriously. "I'm proud of the fact I had the guts to stand up and take the position I did."

How the Supreme Court has drawn the line

The First Amendment guarantees both the freedom to worship and the separation of church and state. The Supreme Court has viewed neither as absolute. Freedom to believe is absolute, but the freedom to practice that belief has been restricted in some circumstances.

Government may not aid religion directly, but secular programs that aid religious institutions indirectly may be permissible. One of the first religious-liberty cases to reach the Supreme Court came out of Louisville.

Watson vs. Jones began as a dispute between pro-slavery and anti-slavery factions at a Presbyterian church in Louisville. Each claimed to control the church and to be "the true Walnut Street Presbyterian church." In a decision that still stands as law, the justices decided in 1872 that churches must settle their own disputes about doctrine, faith and church assets. Secular courts shouldn't meddle.

Here are some of the other major decisions in which the Supreme Court has defined the freedom to worship:

1879. Polygamy may be barred by federal law even though it is claimed as a religious tenet 1905. Children can be required to be inoculated against smallpox over the religious objections of their parents. 1925. Parents cannot be forced to send children to public schools instead of religious ones. 1940. Cities cannot require permits for religious solicitations. 1943. Children cannot be required to salute the flag at school if it violates religious beliefs of their parents. 1968. A seriously ill child can be given blood transfusions by court order over the religious objections of the parents. 1971. Conscientious objectors may be excused from combat only if they object to all wars, not particular conflicts. 1972. Children of Amish parents who object to education past the eighth grade may be excused from state compulsory-education laws. 1988. An Air Force officer who is an Orthodox Jew may be barred from wearing his yarmulke when required to be in uniform.

Here are some of the major decisions in which the Supreme Court has defined the wall that separates church from state. 1899. Federal money may be used to build religious hospitals, if the hospitals admit patients regardless of religion. 1930. Students in parochial schools can be given secular textbooks paid for with state money. 1947. Parents can be reimbursed for the costs of sending children to parochial schools on public transportation. 1948. Public schools cannot invite religious teachers into the schools to provide instruction for students, even students who volunteer. 1952. Students can be released during the school day to attend religious classes away from the school. 1962. School districts cannot adopt nonde- nominational prayers to be repeated voluntarily by students at the beginning of each school day. 1963. Students cannot be required to read Bible verses or the Lord's Prayer. 1968. States cannot forbid the teaching of evolution. 1970. Churches can be excused from paying income and property taxes. 1971. Teachers of secular subjects in parochial schools cannot be paid with public money. 1972. Cadets at U.S. service academies cannot be required to attend church or chapel services. 1973. States cannot offer tuition grants or tax credits to parents of parochial school students. 1984. Cities may erect Nativity scenes in their Christmas displays. 1985. States cannot require one minute of silent prayer or meditation each day in the public schools. 1987. States cannot require public schools to teach creation science

Tomorrow Oliver vs. Graham, 1984: Ignoring a locked gate and "No Trespassing" signs, police raid an isolated farm without a warrant in search of a marijuana field.

Ray Oliver's privacy

Seventh in a series of stories commemorating the 200th anniversary of the United States Constitution

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ..." Fourth Amendment, U.S. Constitution.

By ANDREW WOLFSON Staff Writer

Twenty miles from the nearest town, tucked away under the bluffs of the Cumberland River, retired Russell County farmer Ray Oliver could hardly have lived on a more secluded spread. To assure his privacy, though, he posted "No Trespassing" signs around his land in Southern Kentucky and padlocked his front gate.

But when Kentucky State Police detectives got a tip in 1980 that marijuana might be growing on his farm, they marched without a warrant past the signs, slipped around the gate, and found what they were looking for: about eight acres of pot worth as much as $400,000.

Oliver, 61, faced a federal charge that carried a sentence of up to 15 years in prison. With only a sixth-grade education, the former state highway laborer didn't know much about the law. But he knew one thing: Police couldn't barnstorm through his house without a warrant. any more right to trample through his fields?

In 1789, to prevent the new U.S. government from conducting the kind of oppressive searches for which the British were notorious, Congress proposed the Fourth Amendment to the Constitution. In an early draft of the amendment James Madison proposed that citizens be protected from unreasonable searches of their "property" as well as their homes and papers. But for some reason, the word "property" was left out of the final version.

Did that mean police could search a farmer's fields without a warrant? The Supreme Court didn't address that question until 1924, during Prohibition. Reading the Fourth Amendment literally, the court found no mention of "property," and decided that revenue agents could enter an open field without a warrant to seize a jug of moonshine dropped by a bootlegger. The "open fields doctrine" stood for decades and did not bode well for Oliver.

But his lawyers knew that the court had vastly expanded the scope of the Fourth Amendment in other areas.

One example, in 1967, the court decided that police, without a warrant, could not secretly record conversations In public telephone booths. The framers obviously had not foreseen this situation.

The Warren Court said the amendment should protect people, not places. Citizens should have a "reasonable expectation of privacy" wherever they are, the court said, as long as society at large would consider their expectation reasonable. In other words, a person yelling in the courthouse square can't expect not to be overheard.

But when be closes the door to a phone booth, he should be able to expect that his conversation won’t be broadcast to others. In the telephone-booth case, the court mentioned nothing about open fields.

But the way Ray Oliver saw it, it was reasonable to expect privacy after locking your front gate and posting "No Trespassing" signs. "If you can’t expect to be private at Ray Oliver's place," defense lawyer Robert Wilson said, "you can’t expect to be private any place in the world." U.S. District Judge Edward Johnstone agreed.

He ruled that police had seized the marijuana from Oliver's land illegally and that it could not be used against him as evidence.

Johnstone's ruling jeopardized not only the case against Oliver, but cases against 30 other alleged pot growers in Western Kentucky. And it threatened to undo the Supreme Court's doctrine that for 56 years had allowed police to search open fields without warrants.

The government took its case to the U.S. 6th Circuit Court of Appeals in Cincinnati. A three- judge panel first ruled for Oliver, but then the full court, by a 5-4 vote, reversed Johnstone, affirmed the open-fields doctrine, and reinstated the evidence against Oliver. The court said it had weighed the privacy interests of landowners against the public interest in the war on drugs, and decided the public interest should prevail.

The legal principles that protect privacy, the court added, "do not protect the desert island, the mountaintop or the open field even one with a 'no trespass' sign."

Then Oliver vs. United States moved to the Supreme Court. Combined with a nearly identical case from Maine, it drew national attention, pitting law-enforcement officials on one side and farm and migrant-labor groups on the other.

For both sides, the stakes were high. If Oliver prevailed, police would have to go to judges for warrants every time they got a tip about a pot field or spotted marijuana plots from surveillance planes. Judges probably wouldn't issue search warrants based on the kind of anonymous tip that police got on Oliver. But even when they did, growers would win extra time in which to destroy evidence.

For a different reason, the case also galvanized farm and migrant-worker groups. They saw a victory by Oliver as a chance to end the relentless invasions of farms by immigration agents bent on turning up illegal aliens.

The farm groups stood on principle too: Just because farmers can't wall off their fields like other businesses, they asked, why should they enjoy less privacy? "Officers were treating farms as public property," said Carl Borden, attorney for the 100,000-member California Farm Bureau Federation, which joined Oliver's case. "And farmers didn't like that."

The questions before the Supreme Court were framed clearly: Did Oliver have a reasonable expectation of privacy? Should one enjoy the same protection from police searches in an open field as in one's home? Justice Thurgood Marshall thought so. If private citizens had walked on to Oliver's land as police did, they would have been liable for criminal trespass.

Why, he asked, should a government official be allowed to ignore what the general public must obey? Secluded private fields, he added, are often host to activities as private as those in the home. "Some landowners use their spaces to meet lovers," Marshall said. "Many like to take solitary walks on their property, confident that they will not be confronted in their rambles by strangers or policemen."

But Marshall did not persuade the court's majority. Open fields simply don't provide the setting for those "intimate activities" that the Fourth Amendment is supposed to shelter from government surveillance, Justice Lewis Powell wrote for the court.

Society has no interest in protecting the privacy of activities such as the cultivation of crops, he said. As for the steps Oliver took to ensure his privacy the locked gate, the "No Trespassing" signs the court said the legality' of a search shouldn't hinge on the length to which a person has gone to conceal criminal activity. On April 17, 1984, divided 6-3, the court affirmed the doctrine that had been adopted in 1924 and that seemed to be slipping away.

Citizens may have a reasonable right to privacy, the Burger Court concluded, but they can never reasonably expect it in an open field. The case against Ray Oliver would stand.

Postscript

Throwing in the towel Four months after the decision, Oliver gave up. Although he'd claimed that the marijuana had been grown by two men who were leasing part of his property, they never were found or charged.

On August 8, 1984, In federal court in Bowling Green, Oliver pleaded guilty to one count of manufacturing marijuana. Judge Edward Johnstone, who four years earlier had ruled for Oliver, sentenced him to 45 days in jail and five years of probation.

Oliver served his time at the Federal Correctional Institute In Lexington, then returned to his farm on Rockhouse Bottoms in Russell County, where his family has lived for 200 years.

His local attorney, Robert Wilson, said Oliver doesn't regret having gone all the way to the Supreme Court, only to lose. "He may not have understood all the Issues," Wilson said. "But he felt very strongly that his land was his land, and that if police were going to come on it they should have had a warrant.”

Victory in Congress

Farm and farm-labor groups won in Congress what they lost at the Supreme Court In 1986, Congress enacted the Immigration Reform and Control Act part of which bars immigration officers from entering farmlands without a warrant. "It had become routine for the Border Patrol to come onto farms whenever they saw people with dark skin in the fields," said Borden, of the California Farm Bureau Federation. "Now they can't do that"

The beginning of "1984"? The Kentucky State Police naturally were pleased with the outcome of the case. If Oliver had won, Capt. Larry Fentress said, it would have crippled the state's war on marijuana. In rural areas, he said, detectives often can't even find judges to issue search warrants, even when they have enough evidence to get one.

But liberal commentators at law schools denounced the decision. The author of one law-journal analysis said it had reduced the Fourth Amendment to "a shadow of its former self." A second asked, "Are we no longer to be afforded the unbiased reasoning of the courts before zealous police are allowed to enter wherever and whenever they please?" A third stated, "This decision may forecast the beginning of '1984' when 'Big Brother requires that a landowner enclose his field in a dome to protect his privacy."

In fact since Oliver's case, the court has held that landowners can't reasonably expect privacy from aerial searches of their fields or even the area immediately surrounding their homes.

Slipping out for coffee

Scott Wendelsdorf, a former assistant U.S. attorney who began the prosecution of Oliver and briefed the case at the Court of Appeals, since has switched to the defense bar. He said he was at a seminar for defense lawyers at Northwestern University recently when a professor began denouncing the Oliver case as the Supreme Court's worst decision ever on the Fourth Amendment "Needless to say," Wendelsdorf said, "at that point I slipped out for coffee."

Tomorrow Batson vs. Kentucky, 1986: An all-white jury convicts a black man of burglary after the prosecutor removes all potential black jurors.

1986. James Batson’s jury.

Last in a series of stories 200th anniversary of the U.S. Constitution.

"In all criminal prosecutions, the accused shall enjoy the right to a ... public trial, by an impartial jury of the state. ..." Sixth Amendment

By ANDREW WOLFSON Staff Writer

When James Kirkland Batson stood trial for burglary on Valentine's Day in 1984, the 27-year- old black Louisville laborer sensed history repeating itself. Just as in his trial for burglary a year earlier, Batson watched as prosecutor Joe Gutmann removed all the blacks who might have served on his jury.

This time, Batson realized what was happening. "I said, 'Hey, wait a minute, this is not right,' " he recalled. His public defender protested, too. But Circuit Judge George Ryan simply shrugged and said there was nothing he could do.

The all-white jury proceeded to find Batson guilty of the burglary and receiving stolen property three women's rings and of being a persistent felon. He was sentenced to 20 years in prison.

In the 100 years before James Batson went to trial, the U.S. Supreme Court had tried to purge racial discrimination from jury selection. In 1880, the court ended the most overt discrimination the outright ex commemorating the United States Constitution clusion by law of blacks from jury service. In 1935, the court decided it was just as illegal for court officials to exclude blacks from jury duty as a matter of practice. In 1938, for example, the court reversed the murder conviction of a black defendant from Paducah who showed that no black had even been summoned for jury duty in McCracken County for 30 years.

However, as the Supreme Court cracked down on the exclusion of blacks from jury pools, prosecutors turned to a more subtle way of keeping blacks off juries: the peremptory challenge.

In criminal trials, the defense and prosecution first may remove potential jurors for cause that is, if jurors are related to the defendant, for example, or have any other obvious reason to be prejudiced in the case. Next, both sides traditionally have been allowed to strike a set number of jurors without explanation, peremptorily, based on the juror's appearance, occupation, race, religion or for no reason at all. Lawyers on both sides concede that such decisions often rest on hunches or stereotypes but say they are crucial in allowing both sides to rid the jury of potentially biased members.

Prosecutors, however, insist such "strikes" are more important for the state tate because it must win unanimous verdicts to convict.

In the past, prosecutors have admitted trying to keep blacks off juries as a matter of course. After 350 years of slavery and segregation, prosecutors have said, it's only logical that blacks are more likely to distrust police officers and other government witnesses.

But defense lawyers say that when prosecutors remove blacks from juries solely because of race, they violate the rights of both the excluded jurors and the defendant. ; The defendant is denied his right to a ' jury drawn from a cross-section of the community. The juror is kept from an important civic role.

The community suffers, too, defense lawyers say, because the jury's verdict no longer represents the entire community.

The Supreme Court first considered the racial use of jury challenges in 1965, in the case of Robert Swain, a 19-year-old Alabama man who was convicted and sentenced to death for raping a white woman. All six blacks called to the courtroom were struck by the prosecutor. And Swain showed that no black had served on a jury in his native Talladega County in the previous 10 years.

But the court, led by Chief Justice Earl Warren, upheld Swain's conviction. In individual trials, the court said, prosecutors could look at "group characteristics" including race to predict which jurors might be biased.

Defendants could object only if they proved the prosecutor repeatedly had excluded blacks because of their race, in trial after trial. In practice, the "Swain rule" proved an insurmountable hurdle for defendants.

Only two defendants in the United States are believed ever to have met its burden. Swain, despite his historical evidence, failed to prove a "purposeful pattern of dis- crimination over a period of time," the court found.

Defense lawyers say Swain vs. Alabama served as a license an invitation for prosecutors to exclude jurors because of race. Indeed, in James Batson's case, it led Judge Ryan to say, "Anybody can strike anybody they want to."

Citing Swain's case, the Kentucky Supreme Court quickly dispensed with an appeal that Batson had filed, leaving his conviction and 20-year sentence intact. But on April 22, 1985, the U.S. Supreme Court agreed to consider it.

After 20 years, was the high court about to rethink its position on racially based jury challenges? The possibility galvanized the legal community. Among other groups, the American Civil Liberties Union and the NAACP Legal Defense and Education Fund lined up with Batson. The Reagan administration and National District Attorneys Association supported the state of Kentucky.

The case matched two Kentucky lawyers, both 34, and both making their first appearance at the Supreme Court. For Batson, there was J. David Niehaus, an assistant public defender, and for the , commonwealth, Rickie Pearson, an assistant attorney general, himself black.

Pearson urged the court to retain the status quo. Opening jury selection to questioning, Pearson and allies argued, would swamp the courts in endless hearings and appeals, taxing already overcrowded dockets. Also, if forced to justify removing jurors, prosecutors simply would lie about their reasons, making up excuses having nothing to do with race, they said.

Moreover, the prosecutors argued, both sides in trials should be allowed to strike jurors based on ethnic and racial stereotypes because lawyers often have nothing more to go on, and such hunches sometimes work to identify jurors who might be partial.

Over the years, researchers have found some validity in stereotypes used by both defense attorneys and prosecutors in selecting jurors. In Detroit, for example, a survey in 1970 found that 23 percent of white jurors but only 10 percent of blacks said they would accept the testimony of a police officer simply because he was a policeman.

Prosecutors eventually came to rely on such findings, along with their experience. Although it is not consulted widely now, the Kentucky Prosecutors Handbook, issued in 1975, advised that minorities generally should be considered "no" jurors because "they often harbor deep-seated animosity for law-enforcement officers."

A handbook used into the 1960s in Dallas but since revised advised: "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or well-educated."

More recently, some prosecutors have . argued that racial diversity would help ensure impartial trials. come to regard blacks as good jurors for the state because they are more likely to have been crime victims.

But despite that, Batson and allies pleaded with the Supreme Court to bar prosecutors from selecting jurors because of race or at the least, to allow trial judges to be able to police that practice.

Racial diversity on the jury, the defense groups told the court, is more likely to ensure impartial trials than allowing prosecutors to continue to strike jurors without explanation.

Chief Justice Warren Burger and Justice William Rehnquist found Batson unpersuasive. "To suggest that a particular race is unfit to judge in any case necessarily is racially insulting," they said. "To suggest that each race might have its own special concerns, or even to favor its own, is not."

The court's majority disagreed. "A person's race simply is unrelated to his fitness to serve as a juror," Justice Lewis Powell wrote for the court on April 30, 1986. When the state purposefully excludes blacks from juries, the majority said, it undermines "public confidence in our system of justice and touches the entire community." T he court rejected Batson's contention that his Sixth Amendment right to a fair trial had been denied. But it said the state does deny a black defendant's 14th Amendment right to equal protection of the law when it puts him on trial before a jury from which members of his race purposefully have been excluded.

The Swain rule was dead.

In its place, the court said that defendants should be able to question suspicious jury selection in any trial. If a prosecutor appears to be using all or most of his challenges to remove blacks from a jury, the defendant can demand an explanation. And if the prosecutor fails to offer a valid reason besides race, the judge either can reinstate the excluded juror or call in a new set of jurors and begin selection again.

The Supreme Court reversed Batson's conviction and sent his case back to Kentucky. The court, Justice Thurgood Marshall said, had taken a "historic step toward eliminating the shameful practice of racial discrimination in the selection of juries."

Postscript

Rather than risk retrial, six months after his conviction was reversed, James Batson accepted a plea bargain. In exchange for admitting one count of burglary, he was handed a five-year sentence, the minimum penalty, and the other charges were dropped.

Joe Gutmann, the assistant commonwealth's attorney, never had to explain in court why he eliminated the four blacks who might have heard Batson's case. But he told reporters that he'd struck them because of their youth, not their race.

"The shame of the whole thing was that a very good prosecutor got dumped on," said Bill Grimes, the first assistant in Gutmann's office.

Batson, who maintains he is innocent of any crime, also is serving a 20-year sentence for an earlier burglary conviction. He failed to win his release when he first met the Parole Board in July but is scheduled for another hearing in April. H e says his victory at the Supreme Court means nothing to him, other than the time it trimmed off his sentence. "I never looked at myself as a hero," he said. "I did it for me."