The First Rule of Law: There Must Be Evidence

“. . . it is a violation of due process to convict a man without evidence of his guilt.”

The United States Supreme Court in Thompson v. City of Louisville, 1960

There is near universal agreement that, without the rule of law, a free society cannot survive. And, the rule of law can only mean one thing: judges must honestly “follow the law.” But we usually fail to mention the next most vital truth about the rule of law: A judge cannot possibly “follow the law” unless and until she applies the law to the facts of the case. In law, the facts that apply to a case are of such great importance, they are given the exalted name: EVIDENCE. So, the only way to “follow the law” is by comparing and contrasting what the law says with the evidence presented. A court’s decision made without reference to evidence or that ignores, misinterprets, or misunderstands evidence, is an intellectual oxymoron; but such judicial mistakes are given the full legal force and effect, condemning the innocent and sanctifying the guilty. That is why, in an honest court, the facts are everything. The best laws in the world cannot ensure the rule of law without lawyers and judges who have a near religious devotion to evidence. Without evidence, the so-called rule of law becomes a sleight of hand trick.

Now, one might ask, why this near-religious, fanatical devotion to evidence? The short answer is, a laser focus on evidence is society’s only way of protecting itself from courts. Yes, that is what I said. To paraphrase James Madison, if men were angels, we wouldn’t need laws and courts; and, if judges were angels, we wouldn’t have to worry about them following the law. But, neither we nor our judges are angels, so there are two things we must know about courts: (1) to have The Rule of Law there must be courts and (2) history teaches that courts are dangerous. In fact, it might be correct to say that the only thing more dangerous than having courts is not to have them.

Establishing a court is like handing someone a loaded gun: it can be used to protect the innocent and ensure fairness. Or, like the courts of the Inquisition, it can be used as an instrument of terror against those out of favor with the powers that be. In living memory, one could know in advance that when a black man was adverse to a white man in certain courtrooms, the black man loses. As young lawyers, we often laughed about the fact that there were no drunk drivers emerging from the country club where prodigious amounts of alcohol were served while there was a steady stream of drunk driving convictions of those poorer people who emerged from beer joints. Our painful laughter was just another way of acknowledging that rich and poor were treated differently in the courts where we worked.

Traveling to the smaller counties that surrounded the city where I began practicing law, I quickly learned that, in local courts, the local citizen almost always won against an outsider. Anybody who has observed courts for any length of the time can add to this list of the many and varied ways courts can, knowingly and unknowingly, go wrong. Our courts are not perfect. Courts can and do garble, misinterpret, and misunderstand evidence. Sometime lawyers don’t or can’t present evidence or court procedure gets in the way of crucial evidence ever being heard. Then, more often than we would like to think, courts forget that they must actually look at evidence. These devastating mistakes caused by judges deciding the outcome in advance and then using the court proceedings as a way to justify the “decision” usually don’t start with a warning bell or a loud “bang.” Rather, ignoring facts and evidence begins subtly. It happens on the slippery slope of business-as-usual, ordinary cases, heard on average days, and in typical courts. Such is the case that follows.

In 1960, in Thompson v. City of Louisville, 362 U.S. 199 (1960), Sam Thompson brought his case to the United States Supreme Court complaining that he was convicted of a crime without any evidence showing he was guilty. Listen to the first paragraphs of Justice Hugo Black’s written opinion:

Petitioner was found guilty in the Police Court of Louisville, Kentucky, of two offenses—loitering and disorderly conduct. The ultimate question presented to us is whether the charges against petitioner were so totally devoid of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment. Decision of this question turns not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all.

The facts as shown by the record are short and simple. Petitioner, a longtime resident of the Louisville area, went into the Liberty End Cafe about 6:20 on Saturday evening, January 24, 1959. In addition to selling food the cafe was licensed to sell beer to the public and some 12 to 30 patrons were present during the time petitioner was there. When petitioner had been in the cafe about half an hour, two Louisville police officers came in on a ‘routine check.’ Upon on seeing petitioner ‘out there on the floor dancing by himself,’ one of the officers, according to his testimony, went up to the manager who was sitting on a stool nearby and asked him how long petitioner had been in there and if he had bought anything. The officer testified that upon being told by the manager that petitioner had been there ‘a little over a half-hour and that he had not bought anything,’ he accosted Thompson and ‘asked him what was his reason for being in there and he said he was waiting on a bus.’ The officer then informed petitioner that he was under arrest and took him outside. This was the arrest for loitering. After going outside, the officer testified, petitioner ‘was very argumentative-he argued with us back and forth and so then we placed a disorderly conduct charge on him.’ Admittedly the disorderly conduct conviction rests solely on this one sentence description of petitioner’s conduct after he left the cafe.

The foregoing evidence includes all that the city offered against him, except a record purportedly showing a total of 54 previous arrests of petitioner. Before putting on his defense, petitioner moved for a dismissal of the charges against him on the ground that a judgment of conviction on this record would deprive him of property and liberty without due process of law under the Fourteenth Amendment in that (1) there was no evidence to support findings of guilt and (2) the two arrests and prosecutions were reprisals against him because petitioner had employed counsel and demanded a judicial hearing to defend himself against prior and allegedly baseless charges by the police. This motion was denied.

Petitioner then put in evidence on his own behalf, none of which in any way strengthened the city’s case. He testified that he bought, and one of the cafe employees served him, a dish of macaroni and a glass of beer and that he remained in the cafe waiting for a bus to go home. Further evidence showed without dispute that at the time of his arrest petitioner gave the officers his home address; that he had money with him, and a bus schedule showing that a bus to his home would stop within half a block of the cafe at about 7:30; that he owned two unimproved lots of land; that in addition to work he had done for others, he had regularly worked one day or more a week for the same family for 30 years; that he paid no rent in the home where he lived and that his meager income was sufficient to meet his needs. The cafe manager testified that petitioner had frequently patronized the cafe, and that he had never told petitioner that he was unwelcome there. The manager further testified that on this very occasion he saw petitioner ‘standing there in the middle of the floor and patting his foot,’ and that he did not at any time during petitioner’s stay there object to anything he was doing. There is no evidence that anyone else in the cafe objected to petitioner’s shuffing his feet in rhythm with the music of the jukebox or that his conduct was boisterous or offensive to anyone present. At the close of his evidence, petitioner repeated his motion for dismissal of the charges on the ground that a conviction on the foregoing evidence would deprive him of liberty and property without due process under the Fourteenth Amendment. The court denied the motion, convicted him of both offenses, and fined him $10 on each charge. A motion for new trial, on the same grounds, also was denied, which exhausted petitioner’s remedies in the police court.

Later in the opinion Justice Black performs the compare and contrast of the law to the evidence that should have been done back in the Louisville Police Court:

The pertinent portion of the city ordinance under which petitioner was convicted of loitering reads as follows:

‘It shall be unlawful for any person * * *, without visible means of support, or who cannot give a satisfactory account of himself, * * * to sleep, lie, loaf, or trespass in or about any premises, building, or other structure in the City of Louisville, without first having obtained the consent of the owner or controller of said premises, structure, or building; * * *’ § 85-12, Ordinances of the City of Louisville.

In addition to the fact that petitioner proved he had ‘visible means of support,’ the prosecutor at trial said ‘This is a loitering charge here. There is no charge of no visible means of support.’ Moreover, there is no suggestion that petitioner was sleeping, lying or trespassing in or about this cafe. Accordingly he could only have been convicted for being unable to give a satisfactory account of himself while loitering in the cafe, without the consent of the manager. Under the words of the ordinance itself, if the evidence fails to prove all three elements of this loitering charge, the conviction is not supported by evidence, in which event it does not comport with due process of law. The record is entirely lacking in evidence to support any of the charges.

Here, petitioner spent about half an hour on a Saturday evening in January in a public cafe which sold food and beer to the public. When asked to account for his presence there, he said he was waiting for a bus. The city concedes that there is no law making it an offense for a person in such a cafe to ‘dance,’ ‘shuffle’ or ‘pat’ his feet in time to music. The undisputed testimony of the manager, who did not know whether petitioner had bought macaroni and beer or not but who did see the patting, shuffling or dancing, was that petitioner was welcome there. The manager testified that he did not at any time during petitioner’s stay in the cafe object to anything petitioner was doing and that he never saw petitioner do anything that would cause any objection. Surely this is implied consent, which the city admitted in oral argument satisfies the ordinance. The arresting officer admitted that there was nothing in any way ‘valgar’ about what he called petitioner’s ‘ordinary dance,’ whatever relevance, if any, vulgarity might have to a charge of loitering. There simply is no semblance of evidence from which any person could reasonably infer that petitioner could not give a satisfactory account of himself or that he was loitering or loafing there (in the ordinary sense of the words) without ‘the consent of the owner or controller’ of the cafe.

Petitioner’s conviction for disorderly conduct was under § 85-8 of the city ordinance which, without definition, provides that ‘(w)hoever shall be found guilty of disorderly conduct in the City of Louisville shall be fined * * *.’ etc. The only evidence of ‘disorderly conduct’ was the single statement of the policeman that after petitioner was arrested and taken out of the cafe he was very argumentative. There is no testimony that petitioner raised his voice, used offensive language, resisted the officers or engaged in any conduct of any kind likely in any way to adversely affect the good order and tranquillity of the City of Louisville. The only information the record contains on what the petitioner was ‘argumentative’ about is his statement that he asked the officers ‘what they arrested me for.’ We assume, for we are justified in assuming, that merely ‘arguing’ with a policeman is not, because it could not be, ‘disorderly conduct’ as a matter of the substantive law of Kentucky.

Justice Black’s unanimous opinion can be paraphrased: Shuffling one’s feet in a café is not evidence of a crime and to say otherwise violates the command of our most sacred document. And disagreeing with an officer about being arrested is not evidence of disorderly conduct. The Constitution’s Fourteenth Amendment says, No State shall . . . deprive any person of . . . liberty . . . without due process of law.”

The oral argument in this case reveals that Sam was an alcoholic, a ne’er do well who was regularly arrested by the Louisville police. Apparently, Sam’s arrest was retaliation for a prior case in which a lawyer obtained Sam’s acquittal, offending the Louisville police who then decided that Sam’s future conduct deserved increased scrutiny. Oral argument in the case also reveals that Sam Thompson’s arrest was not unusual in 1960. All across the United States, courts used so-called “loitering laws” and “disorderly conduct laws” as an excuse to arrest, and thereby remove from sight, those who did not fit in with the scheme of what “America” was supposed to look like in that day and time. “Loitering” played a central role in the history of the repression of poor people and “undesirables” in this country, and deserves study beyond the scope of this discussion. Had a lawyer not intervened on his behalf, Sam probably would have served a ten-day jail sentence by which he would have extinguished his fine at the rate of two dollars for each day served. This serving time to pay the fine was his plight before and after this case.

(As an interesting aside: Justice Black is perhaps the only member of the United States Supreme Court, living or dead, who could speak from experience as a police court judge. As a young lawyer, Hugo Black served as police court judge in Birmingham, Alabama.)

Sadly, the most important thing to know about Sam Thompson’s case is that it is not an unusual or an outlier. Appellate courts, with some frequency, reverse lower courts for making decisions supported by “no evidence.” Often we hear that scientific evidence has proved a court’s prior judgment to be a physical impossibility.  The brutal reality is, Courts, judges, and the legal profession must routinely, daily, and constantly struggle with the danger that our lessor angels and our weakest intelligence will dissuade or detract our better angels and our better intelligence from making decisions based on evidence.

Of course, I am, like everyone else, susceptible to thoughts about easy solutions. I start fantasizing about solving this problem by writing prominent, bold letters on at least one wall in every courtroom saying, “THE FIRST RULE OF LAW IS: EVERY DECISION MUST BE BASED ON EVIDENCE.” Actually, there is precedent for this kind of bold-letter reminder: in the finest hospitals with the most brilliant surgeons, you find, written in bold, easily seen letters: “NOT THIS LEG,” “NOT THIS BREAST,” “NOT THIS HAND.” Isn’t the struggle for based-on-evidence court decisions as important as the struggle to avoid the loss of a good leg or breast or hand? Perhaps the only real difference in a court wrongfully locking a human being in a cage or taking away their property or child, is that the court’s mistake is usually not as obvious as a missing leg or breast?

So, here is the bottom line and the brutal truth: If we want to live in a just society, The Rule of Law is an absolute necessity that cannot be achieved without a fierce attachment to evidenced-based decisions in every aspect of our lives but especially in our courtrooms. Just like your mom (and Justice Black) told you, if you want a fair and just society, you got to be honest.