To the Editor:

Joseph W. Bishop, Jr., in his review of Macklin Fleming’s The Price of Perfect Justice [Books in Review, July] applauds Justice Fleming’s attack on the power of federal courts to review state court criminal proceedings. It is “not easy,” according to Mr. Bishop, “to find a case in which it seems probable, or even reasonably possible, that an innocent man was punished.” Even Miller v. Pate, which Judge Friendly declared was one of the “glories of federal habeas corpus,” was, in the Fleming-Bishop view, wrongly decided. There, in 1967, the Supreme Court upset the conviction of a man sentenced to death for the rape-murder of an eight-year-old girl. But “alas,” declares Mr. Bishop, “Justice Fleming’s exhaustive examination of the evidence in that case (including some vital evidence that the Supreme Court ignored) leaves the reader with small doubt that the original verdict of guilty was just.”

As Miller’s counsel in the Supreme Court, may I say a word? There—seven years after conviction and seven death dates—in a federal habeas corpus action, for the first time Miller was allowed a scientific examination of a pair of heavily stained shorts found by the authorities near the crime scene, and identified by Miller, in a soon repudiated confession, as abandoned by him. At the trial, a prosecution expert testified to blood of the child’s type on the shorts. The prosecution told the jury of “those shorts . . . with blood.” Miller’s expert found only paint, and no blood residue on the shorts. Subpoenaed prosecution files revealed knowledge of the paint long before trial, yet this fact was never revealed to the trial judge, the jury, or the defense. The Supreme Court ignored no evidence, it simply picked out one egregious ground for reversal. . . . The full story is set out in my recent book, Scapegoat Justice: Lloyd Miller and the Failure of the American Legal System (Indiana University Press, 1973). A careful analysis of the known facts demonstrates, I think, that Miller was not guilty.

. . . Tragically, all too often state courts countenance gross violations of due process. The federal courts are an indispensable avenue for justice.

The Fleming-Bishop reaction to the Miller case is disturbing: they tolerate, even in a capital case, prosecution suppression of evidence inconsistent with guilt, and then, when the facts come to light in a federal court, they sit as a super jury, declaring that the newly revealed evidence should not change the result.

If the criminal process is to teach morality to the accused and to the rest of us, it must act honorably. To the extent it tolerates suppression of evidence, chicanery, and low blows, it will be perceived not as society’s instrument for justice, but simply as an instrument of wrong and oppression, worse in a sense than the criminal, because of its hypocrisy.

Wlllard J. Lassers
Chicago, Illinois

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Joseph W. Bishop, Jr. writes:

Willard J. Lassers is naturally and properly convinced that his client was innocent. All I know about the record in Miller v. Pate is what the Supreme Court said in its opinion and what Justice Fleming said in his book, which latter struck me as detailed and exhaustive and, presumably, truthful. I am at present at the University of Cambridge in England and the book is not available here, but my recollection is that his account of the evidence, particularly concerning the presence of blood as well as paint on the shorts, differs in some respects from that of Mr. Lassers. I can only repeat what I said, that this reader, at least, found Fleming’s analysis convincing. Readers will have to compare it with Mr. Lassers’s and make up their own minds.