fine - rioters and judges

Citation: 33 Wayne L. Rev. 1723 1986-1987

Content downloaded/printed from HeinOnline (http://heinonline.org)Thu Nov 7 13:07:21 2013

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

-- To obtain permission to use this article beyond the scope of your HeinOnline license, please use:

https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0043-1621

RIOTERS AND JUDGES: THE RESPONSE OFTHE CRIMINAL JUSTICE SYSTEM TO THE

DETROIT RIOT OF 1967

Sidney Finet

"[I]t would now appear," George E. Bushnell, Jr., wrote thedeputy director of the Lawyer's Committee for Civil Rights andLaw, "that, for all practical purposes, the United States Constitutionwas absolutely suspended sometime during the evening of Sunday,July 23rd, to Tuesday, August 1, 1967. "1 Bushnell was referring tothe treatment accorded the thousands of persons arrested during thecourse of the Detroit riot that began with a police raid on a "blindpig" in the early morning hours of July 23, 1967, and that became"the worst civil explosion" experienced by an American city in thetwentieth century.'

The police arrested a total of 7,231 individuals during thecourse of the 1967 Detroit riot, as compared with 3,952 arrests dur-ing the 1965 Watts riot and 1,510 arrests during the Newark riotthat immediately preceded the Detroit disturbance. Of the 6,528adult Detroit arrestees, 781 were white and 806 were women. The703 juveniles arrested included forty-three whites and eighty-one fe-males. The ages of the juvenile arrestees ranged from ten to sixteen,most of them being between fourteen and sixteen. The adult ar-restees ranged in age from seventeen to eighty, but about one-half(3,381) were twenty-five years of age or younger. Includingjuveniles, Detroit arrestees twenty-five years of age or younger con-stituted fifty-eight percent of the total number of arrestees, similarto the sixty percent figure for arrestees in eighteen riots occurring inAmerican cities between June and August 1967. Close to one-half(48.6%) of the Detroit arrestees had arrest records, slightly abovethe forty-five percent with such records among Newark arrestees but

t Andrew Dickson White Distinguished Professor of History, University ofMichigan. Professor Fine is nearing completion of a book on the Detroit riot of1967.

1. Letter from George E. Bushnell, Jr., to Jacques Feuillan, Deputy Directorof the Lawyers Committee for Civil Rights Under the Law (Aug. 3, 1967) (availa-ble in Office of Religious Affairs Papers, Box 1, Archives of Labor & Urban Af-fairs, Wayne State University, Detroit, Mich.).

2. H. LOCKE, THE DETROIT RIOT OF 1967 at 13 (1967).

1723

THE WAYNE LAW REVIEW

well below the seventy-three percent figure for Watts arrestees.3Of the adult arrests in Detroit, about sixty-four percent were for

looting and about fourteen percent were for curfew violations. Twohundred and ninety persons were arrested while carrying firearms,but only twenty-six arrestees were charged with sniping. Althoughforty-three people died during the riot, only seven arrestees werecharged with homicide. Two hundred and six arrestees were chargedwith felonious assault, thirty-four with arson, and twenty-eight withinciting to riot. Looting appears to have been a more common causefor arrest in Detroit than in most other cities experiencing riots be-tween 1964 and 1967, but relatively few Detroiters were arrested forassault or weapons offenses."

Not all those who rioted were arrested, and not all arresteeswere rioters. The police made few arrests at the beginning of theriot,5 and they appear to have been more reluctant to arrest femalesthan males. Michigan' National Guardsmen, who were not author-ized to make arrests, sometimes operated without police escort andwere not always able to summon police in time to apprehend lawbreakers. When the police appeared, looters would flee, the policearresting "the poor dumb people who didn't know how to run orwhere to run." "All we are arresting," declared the chief of theCriminal Division of the Wayne County Prosecutor's Office, "arethe ham-and-egg people." Snipers fired and ran, generally escapingarrest, and the police had little success in apprehending the numer-ous arsonists. On the other hand, police often made arrests on awholesale basis, nonrioters being swept up in police dragnets alongwith rioters. In attempting to contain the disturbance, the police, ineffect, sometimes "spread a huge net over the riot area" and seizedeveryone caught within it.6

3. I. BALBUS, THE DIALECTICS OF LEGAL REPRESSION 141 (1973); R. CONOT,RIVERS OF BLOOD, YEARS OF DARKNESS 379, 381 (1967); DETROIT POLICE DEP'T,STATISTICAL REPORT ON THE CIVIL DISORDER OCCURRING IN THE CITY OF DE-

TROIT 1-3 (July 1967) [hereinafter cited as STATISTICAL REPORT]; REPORT ON THENATIONAL ADVISORY COMMISSION ON CIVIL DISORDER 184 n.3 (Government Print-ing Office ed. 1968) [hereinafter cited as NACCD REPORT]; Negro Youths andCivil Disorders, Records of the National Advisory Commission on Civil Disorders(Series 7, Box 2, Lyndon Baines Johnson Library, Austin, Tex.) [hereinafter citedas NACCD Records]. Michigan law theoretically expunged an arrest from the ar-restee's record if he was not convicted. See, e.g., MICH. ComP. LAWS ANN. § 28.243(West Supp. 1987); see also Letter from B.E. Ponder to Trotter (July 26, 1967)(FBI records obtained under Freedom of Information Act).

4. STATISTICAL REPORT, supra note 3, at 4; NACCD REPORT, supra note 3,at 189 n.13, 190 n.16; R. Hill & R. Fogelson, A Study of Arrest Patterns in the1960's Riot 66 (Dec. 1969) (Final Progress Report).

5. STATISTICAL REPORT, supra note 3, at 4.6. I. BALBUS. supra note 3, at 114-16; Cahalan, The Detroit Riot, 3 PROSECU-

TOR 431 (1967); Detroit Free Press, Sept. 3, 1967; The Detroit News, July 26,

1724 [Vol. 33:1723

RIOTERS AND JUDGES

The normal arrest procedure in Detroit was for police to takearrestees to one of the city's precinct stations where they werebooked, fingerprinted, and interrogated. Those suspected of havingcommitted a felony or a serious misdemeanor were usually held atthe station while a detective investigated the case to determinewhether to recommend the issuance of a warrant by the prosecutor.If, after examining the write-up of the arrest, the prosecutor's officedecided to recommend that the magistrate issue a warrant, the pris-oner's file was sent to the warrant clerk's office in the Recorder'sCourt, where a complaint and warrant of arrest were prepared. Theprisoner was then brought to police headquarters and lodged in oneof the thirteen detention cells in the building. He was subsequentlyarraigned on the warrant before one of the thirteen Recorder's Courtjudges, who set the prisoner's bond. The prisoner was then turnedover to the county sheriff and remained in the county jail until hisrelease.7

Neither the Detroit Police Department, the prosecutor, nor theRecorder's Court was prepared for the flood of prisoners appre-hended by police officers during the 1967 riot. The police depart-ment's riot control plan provided for the use of a departmental busparked close to the riot zone in which arrestees could be booked,thus permitting a quick return to the streets of the arresting of-ficers.8 The police, however, implemented the mobile jail conceptonly to a limited extent during the riot, probably because of thelarge geographical spread of the disturbance and the sheer numberof arrestees. Instead of the 3,000 arrestees over a nine-day periodthat the department had projected in the event of a riot, the policehad to process 4,784 arrestees during the first three days of the riot

1967; Y. Kamisar, Some Salient Features of the Administration of Criminal JusticeDuring and After the July 23-28 Detroit Riot 1-2 (1967) (unpublished paper availa-ble in NACCD Records, Series 4, Box 22, Lyndon Baines Johnson Library);NACCD Report, supra note 3, at 187 n.12; Footnote to Introduction (available inNACCD Records, Series 45, Box 17, Lyndon Baines Johnson Library); Letter fromArthur Weiseger to Francis Kornegay (Aug. 7, 1967) (available in Detroit Urban -League Papers, Box 12, Michigan Historical Collections, Ann Arbor, Mich.); Ad-dress by Hubert G. Locke, Conference of Religious Lay Leaders, Wayne State Uni-versity (Sept. 22-23, 1967) (available in Office of Religious Affairs Papers, Box 28,Archives of Labor & Urban Affairs, Wayne State University); Interview of XavierNicholas with Claudia Morcum & Myron Wahls (Aug. 6, 1981) (copy of tapeavailable from author).

7. Cahalan, supra note 6, at 431-32; Comment, The Administration of Jus-tice in the Wake of the Detroit Civil Disorder of July 1967, 66 MICH. L. REV.1542, 1545-47 (1968); Final Report of Cyrus Vance Concerning The Detroit Riots,July 23 through August 2, 1967 at 41-42 (Nov. 3, 1968) (available with Vance OralHistory Interview, Lyndon Baines Johnson Library) [hereinafter cited as VanceReport].

8. Detroit Police Dep't [Riot and Mob Control Manual] 46 (July 1, 1966).

1987] 1725


alone, the normal load for an entire month. The result was a virtualbreakdown in the booking and investigative process. Booking becamean "assembly-line" operation, with clerical employees workingtwelve-hour shifts. The arresting officers themselves often had to as-sist clerks in filling out the arrest cards before they could return tothe streets.

Because of the large volume of arrests, there was concern thatthe arresting officers would not remember the looters whom theyhad apprehended and the merchandise the looters allegedly hadseized. To meet this problem, the arresting officer and his prisonerwere photographed at booking side by side with the loot. The normalpost-booking investigation of arrests by detectives was designed toeliminate weak cases, but the police department did not have enoughdetectives to permit adequate investigation of the thousands of ar-rests. The result was that the department requested warrants inabout seventy-five percent of the riot arrests as compared to the nor-mal fifty to sixty percent. It requested prosecution for most of thelooting and curfew offenses but less than half of the arrests forhomicide, aggravated assault, robbery, and arson.9

The problem for the prosecutor's office in responding to policerequests for warrants was that it had to process in one week. aboutone-half the number of cases it normally processed in a year. It wassupposed to make its warrant decisions within seventy-two hours toprevent any "'unnecessary delay' between arrest and initial courtappearance" of an arrestee. The prosecutor's office, however, did nothave enough assistant prosecutors to process the large volume ofwrite-ups and to issue warrant recommendations. The forty assistantprosecutors not only had to work shifts around the clock to move thefiles, but also had to do some of the clerical work themselves. Wil-liam L. Cahalan, the county prosecutor, recalled that at one pointduring the riot period assistant prosecutors were on their hands andknees in a large room in the prosecutor's offices sorting papers andseeking to match arrest reports and arrest records.Y0

To some degree, the prosector's office met the deluge of policewarrant requests by recommending, in the words of an assistantprosecutor, "about everything that was brought in." The 4,260 ar-restees for whom warrants were issued, 3,230 for felonies and 1,030

9. I. BALBUS, supra note 3, at 113-16; J. HERSEY, THE ALGIERS MOTEL INCI-DENT 120 (1968); STATISTICAL REPORT, supra note 3, at 3-4; NACCD REPORT,supra note 3, at 184, 193 n.25; Cahalan, supra note 6, at 430, 433. Only 43% of thehomicide arrests, 26% of aggravated assault arrests, and 38% of the arson arrestswere prosecuted compared to 71% of the curfew arrests. NACCD REPORT, supranote 3, at 193 n.25.

10. 1. BALBUS, supra note 3, at 117; Cahalan, supra note 6, at 430; The De-troit News, July 28, 1967; Interview with William Cahalan 7-8, 49 (July 23, 1984)(available in Michigan Historical Collections).

1726 [Vol. 33:1723

RIOTERS AND JUDGES

for misdemeanors, constituted about ninety-eight percent of thenumber for whom the police had requested riot-related warrants.This two percent rejection rate compared with a normal rate ofabout twenty percent. 1

Normally, the prosecutor's office provided the Recorder's Courtjudges with the arrest and conviction records of arrestees beforetheir arraignment. The prosecutor was especially anxious to obtainarrest records during the riot to ascertain if any arrestees had alsobeen involved in the Watts or Newark riots. Obtaining arrest recordsin time for a speedy arraignment proved, however, to be a "horren-dously large job" for the prosecutor since many arrestees gave thepolice fictitious names and the Identification Bureau of the policedepartment could analyze only about 200 fingerprints in a twenty-four hour period. On July 25, the prosecutor's office consequentlyarranged for the police to fly about 1,000 prints to Washington forFBI analysis, a task that the FBI completed within about twenty-four hours. The Alcohol Tax Division also sent ten agents to Detroiton July 26 to aid the police department in checking fingerprints, andthe Windsor police department also provided assistance. A high pro-portion of the arrestees, however, had been arraigned and theirbonds set before the prosecutor's office could determine if they had acriminal record.1 2

It was the prosecutor's responsibility to decide not only whetheran arrestee should be prosecuted but also the offense with which hewas to be charged. When Cahalan, after returning to Detroit fromout-of-town on the evening of July 23, went out on the roof of thepolice headquarters building, it looked to him as though the city was"burning down." "'I want to warn these people who are stealing andburning and looting,'" he announced the next day, "'that they willbe charged with the full criminality of their acts.'" He warned riot-ers that they faced up to life imprisonment for "crimes of vandalismand arson."13

Because of sketchy arrest reports, the result of a muchoverburdened police force, Cahalan did not have the usual informa-tion available to him in deciding on the proper charge for arrestees.

11. I. BALBUS, supra note 3, at 115, 117-18; K.K. Resh, Total CasesProcessed (Aug. 4, 1967) (available in Comm'rs File, Detroit Police Dep't).

12. 1. BALBUS. supra note 3, at 126; Cahalan, supra note 6, at 431; Comment,supra note 7, at 1552 n.39; Detroit Free Press, July 26, 1967; The Detroit News,July 26, 1967; A. Callewaert & A. Yim, The Detroit Police Department and theDetroit Civil Disorder 113-14, Exhibit A (1967) (available in Jerome P. CavanaghPapers, Box 407, Archives of Labor and Urban Affairs, Wayne State University);Letter from N. E. McDaniel to Trotter (July 25, 1967) (FBI records obtained underFreedom of Information Act).

13. Detroit Free Press, July 25, 1967; The Detroit News, July 25, 1967; In-terview with Cahalan, supra note 10, at 15.

1987] 1727


Aware that it was easier to lower a charge than to raise it and that"high papering" would result in the court's setting of higher bonds, apolicy that he initially favored, Cahalan opted for a high proportionof felony charges. An assistant prosecutor later declared, "We had togo with felonies because we didn't know with whom we were deal-ing." It may be, however, that the prosecutor's office, viewed bysome as "'too much a legal mouthpiece of the police,'" wanted sim-ply to give the police the maximum support possible by keeping po-tential rioters off the streets.

The crucial question for the prosecutor regarding charging washow to treat looters. Looters usually could not be charged withbreaking and entering because proof of actual "breaking" was gener-ally lacking. Consequently, even before the prosecutor had returnedto the city, Cahalan's assistants had decided on the charge of "enter-ing without breaking [EW/OB] with intent to commit a felony orlarceny therein." This charge was a felony punishable by not morethan five years imprisonment or a fine of not more than $2,500. Lar-ceny under $100, on the other hand, was a misdemeanor. More thanone-half (54.6%) of the prosecution arrests in the riot were for EW/OB.1

4

Cahalan told a Kerner Commission interviewer just after theriot that he was "quite proud" of his staff for having decided on theEW/OB charge. He had second thoughts about the matter, however,recognizing that it was "100 times easier to move [a misdemeanorcharge] through the system than a felony." Drawing on his riot ex-perience, he advised the State Attorney's staff in Chicago in Febru-ary 1968 to use misdemeanor rather than felony charges wheneverpossible in a riot situation since the latter charge "cluttered trialdockets and imposed heavy evidentiary burdens on the prosecu-tion." 15

The Detroit Recorder's Court, where the arrestees who were tobe prosecuted were arraigned, assigned bail, and tried, was no longerthe court that had enjoyed so favorable a reputation in the early1920s. The Saul Levin Foundation in a report made public in June1966 and a panel of one of the task forces of the President's Com-mission on Law Enforcement and Administration of Justice in May1967 issued reports that were highly critical of the court. The task

14. 1. BALBUS, supra note 3, at 118-19; J.S. CAMPBELL, J.R. SAHID & D.P.STANG, LAW AND ORDER RECONSIDERED 536 (Government Printing Office ed.1969); STATISTICAL REPORT, supra note 3, at 3; Cahalan, supra note 6, at 431.

15. Special Project, Criminal Justice 'in Extremis': Administration of JusticeDuring the April 1968 Chicago Disorder, 36 U. CH. L. REv. 455, 484-85 (1969);Memorandum from Bernard Dobranski to Herman Wilson (Oct. 12, 1967) (inter-view with William Cahalan) (available in NACCD Records, Series 59, Box 2, Lyn-don Baines Johnson Library); Interview with Cahalan, supra note 10, at 12-13.

1728 [Vol. 33:1723

RIOTERS AND JUDGES

force panel characterized the court as "unseemly, disreputable, inad-equate and unfair" and as having "no regard for justice." It pointedout that Recorder's Court courtrooms were "crowded, noisy and dis-organized" and that judges spent little time on misdemeanor cases,neither informing defendants of their rights nor providing them withattorneys. The report noted that defense attorneys in about two-thirds of the preliminary examinations did not try to obtain the evi-dence against their clients or to seek dismissal of the case, probablybecause they planned to plead the defendant guilty. The task forcereported that defendants were generally without counsel and that thearresting officers were generally not present during the arraignmenton the warrant; that the court assigned felony cases to relatively fewcriminal lawyers; that the long delays between arraignment and trialencouraged guilty pleas from the incarcerated; and that the courttreated habeas corpus writs " 'quite lightly,' " acceding to police re-quests for delay.

The executive judge of the court, Vincent Brennan, was highlycritical of the task force report. He charged that its authors wereunfamiliar with Michigan law and court procedures and claimed,inaccurately, that they had spent only two hours in Detroit in 1965.He pointed out, furthermore, that three additional judges had beenadded to the court since 1965 and that only three of the thirteenjudges sitting in 1967 had also been on the court in 1965.16

There was talk in Detroit, especially among blacks, about a"triple conspiracy" among the police department, the prosecutor'soffice, and the Recorder's Court that "severly unbalanced" the"scales of justice," particularly against blacks. The fact that policeheadquarters and the prosecutor's office were in the same building,and the Recorder's Court was in the building just behind the two,appeared to provide physical evidence of the link among the "unholytrio." Defense attorneys, indeed, referred to the Recorder's Court asthe " 'police' " or " 'prosecutor's court.' "17

16. S. FINE, FRANK MURPHY: THE DETROIT YEARS 92-95 (1975); DetroitFree Press, May 7, 1967; The Detroit News, May 7, 1967; Michigan Chronicle,June 25, 1966. The authors of the report actually spent one week in Detroit talkingto court officials, lawyers, and civic leaders. For criticism of the report by otherRecorder's Court judges, see The Detroit News, May 7, 1967.

17. I. BALBUS. supra note 3, at 33-34; Background Material for Ad Hoc Com-mittee on Police Community Relations of the Citizens Committee for Equal Oppor-tunity (Jan. 1, 1965) (available in Walter Reuther Papers, Box 476, Archives ofLabor and Urban Affairs, Wayne State University); Report of Bernard Dobranskito Robert Conot (available in NACCD Records, Box 77, Lyndon Baines JohnsonLibrary); Letter from Richard Emrich to Citizens Committee and enclosed report(Feb. 16, 1965) (available in Frank Angelo Papers, Box 11, Michigan HistoricalCollections); Memorandum from Bernard Dobranski & John Ursu to Herman Wil-son (Oct. 12, 1967) (interview with Philip Colista) (available in NACCD Records,Series 59, Box 2, Lyndon Baines Johnson Library); Memorandum from Errol Miller

1987] 1729


Noting that those who could not afford to post bond or engagecounsel were far more likely to be convicted in Recorder's Courtthan those who could, the Legal Redress Committee of the DetroitNAACP charged the court with "'disrespect toward the rights ofthe poor and especially the Negro,'" who were disproportionatelyrepresented among the poor. In his successful campaign for a Re-corder's Court judgeship in 1966, the militant, leftist black, GeorgeW. Crockett, Jr., contended that the police department and the pros-ecutor's office controlled the court. His experience as a judge beforeand during the 1967 riot confirmed Crockett's view that the Re-corder's Court was "more or less under the thumb of the police de-partment." Crockett sought to alter this state of affairs in his ownrulings, with the result that the police department came to see himby the time of the riot as its implacable foe."

The Recorder's Court was unprepared for the wholesale arrestsresulting from the 1967 riot. Between July 23 and July 31, the courtwas "virtually inundated with humanity." The number of felony de-fendants added to its caseload during the first five days of the riotwas the equivalent of a normal six-month caseload. In its annual re-port for 1967, the court reported that its caseload for the last half ofthe year had been "more explosive" than that ever experienced byany metropolitan court in the United States. The flood of casesposed a challenge to the "established procedures" of the court and,in adjusting to the situation, the court, according to the executivedirector of its psychiatric clinic, threw all precedents "in the ashcan."' 9

Since the Recorder's Court regularly convened on Saturday andSunday, one judge, Donald Leonard, was on duty on July 23. JudgeBrennan opened a second court that day; and before the day wasover, Judge Robert J. Colombo also became available. The court op-erated throughout the night arraigning prisoners, but since only twowarrant clerks were on duty, the court fell behind in processing

to Robert Nelson & Jacques Feuillan (Mar. 1, 1967) (available in NACCDRecords, Series 10, Box 46, Lyndon Baines Johnson Library).

18. Detroit Free Press, April 6, 1969; The Detroit News, April 6, 1969; De-troit Free Press, May 20, 1967; Michigan Chronicle, June 25, 1966; Letter fromLouis F. Simmons to Jerome P. Cavanagh (May 24, 1967) (available in Jerome P.Cavanagh Papers, Box 342, Archives of Labor and Urban Affairs, Wayne StateUniversity); Memorandum from Bernard Dobranski & John Ursu to Herman Wil-son (Oct. 11, 1967) (interview with Ernest Goodman) (available in NACCDRecords, Series 59, Box 2, Lyndon Baines Johnson Library); Interview with GeorgeCrockett 2 (Aug. 7, 1984) (transcript available in Michigan Historical Collections).

19. I. BALBUS. supra note 3, at 113; 1967 ANN. REP. OF THE RECORDER'SCOURT OF THE CITY OF DETROIT 3-4 [hereinafter cited as 1967 RECORDER'SCOURT REP.]; Notes of Meeting (July 31, 1967) (available in George Romney Pa-pers, Box 345, Michigan Historical Collections); Interview with Crockett, supranote 18, at 4.

1730 [Vol. 33:1723

RIOTERS AND JUDGES

cases. On July 24, the court announced that it would remain openaround the clock until further notice to handle arraignments on thewarrant in felony and misdemenaor cases and that all preliminarytexaminations, arraignments on the information, and felony trialswould be adjourned for the time being. The judges worked in six-hour shifts, three judges on duty at any one time handling felonycases and one judge handling misdemeanor cases.20

Like the police and prosecutor's office, the Recorder's Courtwas "completely overwhelmed by the paperwork and record keep-ing" caused by the numerous arrests and antiquated administrativeprocedures. The resulting delays in the administration of justicemeant that arrestees who normally would have been released werekept in jail. On July 24, the presiding judge of the Wayne CountyCircuit Court offered clerical assistance from his court, but the Re-corder's Court did not accept the offer until later in the week. ARecorder's Court clerk then sought to instruct county court clerks inthe use of Recorder's Court files, but since they were unfamiliarwith Recorder's Court procedures, the instruction ceased "after aday of frustration," and the proferred assistance was rejected aslikely to prove "more trouble" than it was "worth." The office staffof the clerk's office was, however, augmented during the week byfifty stenographers, typists, and clerks drawn from various city de-partments. Cahalan arranged for additional clerical assistance byturning to his godmother nun, a member of the Immaculate Heart ofMary, who sent over some of the sisters to serve as typists. Thecourt, however, rejected the suggestion of federal Judge Wade H.McCree, Jr., that it use federal probation officers to interview pris-oners as a possible basis for releasing them on their own recogni-zance and that it deputize volunteer attorneys as special prosecutorsto interview prisoners and to recommend the "nol-prossing" of mis-demeanor cases such as curfew violations.21

20. Detroit Free Press, July 25, 1967; The Detroit News, July 24, 1967; Re-corder's Court Notice (July 24, 1967) (available in Comm'rs File, Detroit PoliceDep't); Memorandum from Bernard Dobranski & John Ursu to Herman Wilson(Oct. 13, 1967) (interview with Vincent Brennan) (available in NACCD Records,Series 59, Box 2, Lyndon Baines Johnson Library); Memorandum from HermanWilson to Robert Nelson (interview with George Crockett) (available in NACCDRecords, Series 59, Box 2, Lyndon Baines Johnson Library).

21. I. BALBUS. supra note 3, at 122; Comment, supra note 7, at 1602 &n.280; Detroit Free Press, Sept. 23, 1967; The Detroit News, July 28, 1967; Y.Kamisar, supra note 6, at 6-7; Official Transcript of Proceedings Before the Na-tional Advisory Commission on Civil Disorders 3796-97 (Nov. 9, 1967) (available inNACCD Records, Series 1, Box 6, Lyndon Baines Johnson Library) [hereinaftercited as Official Transcript of Comm'n on Civil Disorders]; Address by Frank Seng-stock, American Association of Law Schools (Dec. 29, 1967) (available in NACCDRecords, Series 45, Box 15, Lyndon Baines Johnson Library); Interview withCahalan, supra note 10, at 8.

1987] 1731


On July 25, the Chief Judge of the Wayne County CircuitCourt, which had suspended operations because of the riot, offeredthe Recorder's Court the services of the court's twenty-six judges.According to Brennan, the Recorder's Court rejected this offer aswell as the offer of aid from municipal court judges in the Detroitmetropolitan area on the ground that the logjam in the warrantclerk's office, not the lack of judges, caused the delay in the court'soperations. It is difficult, however, to square this assertion with the"'assembly-line techniques'" used by the Recorder's Court judgesduring the week. A more likely explanation is that the court, viewingthe circuit court's offer as "implied criticism" of Recorder's Courtoperations, wished to forestall the passage of a State bill that wouldhave merged the two courts and eliminated the Recorder's Court asan independent entity.

Another explanation for the court's rejection of offers ofassistance was simply that it did not want other judges to know whatwas happening in the Recorder's Court. As Michigan SupremeCourt Justice Theodore T. Souris said, "'They had a fixed notion ofwhat they were going to do and didn't want anyone to interfere.'" Inaddition, as Judge Crockett asserted, the time-consuming processesof the court provided the necessary excuse to keep arrestees in cus-tody. Circuit court judges were eventually used to replace absent Re-corder's Court judges, but this did not add to the available judicialmanpower to hear riot cases. Circuit court judges also later took overthe regular docket of the Recorder's Court felony cases. 22

The arraignment on the warrant of riot prisoners that began onJuly 23 was designed to inform defendants of the charges againstthem, advise them of their constitutional rights, fix bail, and set thedate for the preliminary examination if the felony defendant desiredone. In approaching their duties, most of the judges, like many in thewhite community, were simply "scared to death" by what was hap-pening in the city. According to University of Detroit Law SchoolProfessor Frank Sengstock, a "significant number" of the judges pri-vately conceded that as they watched the fires and smoke in the citythrough the windows of their courtrooms, they were concerned about"the capacity of the structured society" to combat the riot. "'Wehad no way of knowing,'" one of them later declared, "'whether

22. 1. BALBUS, supra note 3, at 122, 132-33; Crockett, Recorder's Court andthe 1967 Civil Disturbance, in RIOT IN THE CITIES 352 (R.A. Chikota & M.C.Moran eds. 1967) [hereinafter cited as Crockett, Recorder's Court]; Comment,supra note 7, at 1558, 1602; Detroit Free Press, July 26, 1967; Panel Discussion,The Detroit Riot: A Challenge to Society and the Legal Profession 20 (Oct. 11,1967) (available in Univ. of Mich. Law Library, Ann Arbor, Mich.) [hereinaftercited as Detroit Riot, A Challenge]; Memorandum from Dobranski & Ursu to Wil-son (Brennan interview), supra note 20; Interview with Cahalan, supra note 10, at50; Interview with Crockett, supra note 18, at 21.

1732 [Vol. 33:1723

RIOTERS AND JUDGES

there was a revolution in progress or whether the city was going tobe burned to the ground.' "23

As a result of their fear, the judges saw the court's role as as-sisting the police in law enforcement rather than being a check onpolice activities. Nowhere was this concern more fully evident thanin the initial setting of bail by all but one of the judges. In settingbail in Michigan, a judge was to consider the seriousness of the of-fense, the past record of the defendant, and the probability of hisappearance in court on the required day. Based on People v. McDon-ald,24 however, a judge could also consider "'all the circumstancesof the case.'" On the evening of July 23, Prosecutor Cahalan, afterconferring with the United States Attorney for the Eastern Districtof Michigan, urged the court to adopt a high bail policy and sug-gested $10,000 as the proper sum for looters. He justified this highfigure because of the "chaos and complete lawlessness" in the streetsand because the arrest records of most defendants were not availableat the arraignment. A high bond policy of this sort was tantamountto preventive detention, but this was apparently "a normally ac-cepted practice" of the Recorder's Court.25

In fixing bail, Recorder's Court judges left no doubt that theirpurpose was "to stop the rioting." "'We will allocate an extraordi-nary bond,'" Judge Brennan declared. "'We must keep these peopleoff the streets. We will keep them off.'" When black power advo-cate Reverend Albert Cleage complained about the high bond policy,Brennan attacked Cleage as " 'a racist who would like nothing betterthan for us [the judges] to turn loose these thugs and . . . the otherextreme take-over-by violence mob he is a part of.'" Brennan laterexplained that since arrest records were unavailable to the court, thehigh bond policy was justified lest serious offenders be released tothe streets, thereby harming the morale of law enforcement person-nel. Criticism of the court's bond policy, he said, came from peoplewho did not realize "'how tense the situation was.' "26

23. Comment, supra note 7, at 1548; Detroit Free Press, Oct. 15, 1967; Y.Kamisar, supra note 6, at 3; Memorandum from Bernard Dobranski to John Ursu(Interview with Ernest Goodman) (available in NACCD Records, Series 45, Box15, Lyndon Baines Johnson Library); Address by Sengstock, supra note 21.

24. 233 Mich. 98, 206 N.W. 516 (1925).25. 1. BALBUS. supra note 3, at 119; Cahalan, supra note 6, at 431-32; Com-

ment, supra note 7, at 1546-47, 1549-50; Detroit Free Press, July 26, 1967; Memo-randum from Dobranski to Wilson (Cahalan interview), supra note 15; Address bySengstock, supra note 21.

26. Capability of the National Guard to Cope with Civil Disorders: HearingsBefore the Special Subcomm. of the House Comm. on Armed Services, 90th Cong.,1st Sess. 6291 (1967) [hereinafter cited as Capability Hearings]; Comment, supranote 7, at 1562-63, 1566-67; N.Y. Times, Sept. 22, 1968; The Detroit News, July26, 1967; Detroit Free Press, July 25, 1967; id. July 24, 1967; Detroit Riot, AChallenge, supra note 22, at 19; Memorandum from Dobranski & Ursu to Wilson

1987] 1733


Like Brennan, Judge Colombo defended a high bail policy asnecessary to keep rioters off the streets. If they were let loose, heinsisted, they would engage in looting on their way home. "'In away,'" he said, "'we're doing what the police didn't do,'" by whichhe undoubtedly was referring to the policy of police restraint at theoutset of the riot. Judge Colombo told one defendant, "'I can setbonds up to $10,000,000 if I wish' "; to an accused looter, he stated,"'You can't get a personal bond in this court. You're nothing butlousy, thieving looters.'" Another judge told a defendant, "'It's toobad they didn't shoot you.' "27

When the judges met in Brennan's office on July 24, the chiefjudge recommended that they set high bonds of $10,000 to $25,000.No vote was taken, and, as Crockett recalled, "'there wasn't evenmuch discussion of the constitutionality of high bail.'" All butCrockett, however, apparently agreed with what Crockett thoughtwas Brennan's "arbitrary decision" and set bonds that day at$10,000 to $25,000 or more for most arrestees. Crockett, on theother hand, set bonds as low as $1,000 and released some defendantson personal bonds. For the most part, the judges made little effort tomake "individual decisions in individual cases," and they ignoredhardship cases. In one instance, a judge lined up six defendants, toldthem they had been accused of EW/OB, and set the bonds for all ofthem at $10,000 without any regard for their individual circum-stances. A newsman who observed Judge Colombo in action on July24 reported that his rulings were "fast, decisive and unyielding" andthat not a single defendant had been able to make his bond.28

Beginning on July 25, with National Guardsmen and UnitedStates Army paratroopers patrolling Detroit's streets and the fearfor the city's survival lessening, Recorder's Court judges began tomoderate their bail policy. Two or three judges began setting bondsof $2,500 and $5,000, but most judges continued to set bonds atlevels well above what was normal for the court. On July 26, JudgeCrockett, who thought other judges were following the high bondpolicy because most of the defendants were black, sent a letter toBrennan, with copies to the other judges, denouncing the bonds be-ing set as "not only excessive, but prohibitive."2

(Brennan interview), supra note 20; Address by Sengstock, supra note 21.27. V.G. SAUTER & B. HINES, NIGHTMARE IN DETROIT 91 (1969); The De-

troit News, July 26, 1967; id. July 25, 1967; Detroit Free Press, July 25, 1967.28. I. BALBUS, supra note 3, at 119-20, 158 n.70; Colista & Domonkos, Bail

and Civil Disorder, in RIOT IN THE CITIES, supra note 22, at 326-27; Comment,supra note 7, at 1549-50; Detroit Free Press, Oct. 15, 1967; id. July 25, 1967;Official Transcript of Comm'n on Civil Disorders, supra note 21, at 3801-02; Ad-dress by Sengstock, supra note 21; Memorandum from Wilson to Nelson (Crockettinterview), supra note 20; Interview with Crockett, supra note 18, at 7.

29. Crockett, Recorder's Court, supra note 22, at 352-53; Detroit Free Press,

1734 [Vol. 33:1723

RIOTERS AND JUDGES

A study that began on July 26 of 1,000 riot arrestees incarcer-ated in the state prison at Jackson indicated that twenty-eight per-cent had bonds of less than $5,000, twenty percent had bonds of$5,000, forty-four percent had bonds of $10,000, and six percent hadbonds of $25,000. The severity of the crime seemed to have littlerelationship to the size of the bond. Thus, of those charged withEW/OB, twenty-four percent had bonds of under $3,000, but forty-three percent had bonds ranging from $8,000 to $12,000. Althoughbonds of $3,000 had been set for twenty-five percent of thosecharged with curfew violation, thirty-five percent of the curfew vio-lators had bonds ranging from $8,000 to $12,000. Under Michiganlaw, misdemeanants of this sort could have been released on a $100bond.

The Jackson study also revealed a wide disparity in the bond-setting practices of different judges. Two judges, George Crockettand Elvin L. Davenport, set bonds of less than $3,000 for more thanone-half of the defendants coming before them. The other judges,however, set bonds below $3,000 for only one to forty-one percent ofthe defendants appearing before them. At the other extreme, onejudge set bonds of $23,000 to $27,000 for thirty-six percent of thedefendants he arraigned, whereas the highest percentage of bonds atthis level set by the remaining judges was seven. In setting bonds,most of the judges paid little attention to whether the defendant wasemployed or unemployed, married or single, or with or without acriminal record. Most of the judges were obviously following a policyof preventive detention by setting artificially high bonds. Ronald Re-osti of the Neighborhood Legal Service Centers (NLSC), which hadbeen established with Office of Economic Opportunity (OEO) fund-ing in 1966, estimated that ninety percent of the bonds the judgesset violated constitutional standards.30

In the Watts and Newark riots, the judges also initially soughtto prevent riot arrestees from returning to the streets by setting highbonds, but the bonds in those two riot cities were well below theDetroit figures. In Watts, the judges increased the usual bail by$3,000 for alleged felons and $1,500 for alleged misdemeanants, butthe typical bond set ranged from $4,400 to $5,500. In Newark,judges set uniform bonds of $1,000 for curfew violation, $2,500 for

July 26, 1967; Memorandum from Wilson to Nelson (Crockett interview), supranote 20; Address by Sengstock, supra note 21.

30. 1. BALBUS. supra note 3, at 120-21; J.H. SKOLNICK, THE POLITICS OFPROTEST 228-29 (1969); Colista & Domonkos, supra note 28, at 326-29, 341-49;Total Action Against Poverty, Program Status (June 1966) (available in Jerome P.Cavanagh Papers, Box 304, Archives of Labor & Urban Affairs, Wayne State Uni-versity); Deposition of Philip Colista (Jan. 9, 1968) (available in NACCD Records,Series 32, Box 3, Lyndon Baines Johnson Library); Interview of Jonathan Rose withRonald Reosti (notes available from Jonathan Rose).

1987] 1735


breaking and entering and receiving stolen goods, $5,000 for the pos-session of deadly weapons, and $10,000 for firebombing or the pos-session of Molotov cocktails.31

Although the judges began to set lower bonds beginning on July25, some of them were still reluctant to release any riot prisonerseven if they could post their bonds. Early in the week of July 23,Judge Brennan and apparently some other judges told Sheriff PeterBuback to report back to them before releasing prisoners who hadposted bonds, apparently so that a check could be made to learn ifthey had been involved in other riots or their records showed thatthey were "'wanted'" or on parole. Crockett claimed that the think-ing behind this policy was that anyone who could post bond "'mustbe a riot leader.'" Some attorneys reported that a sign in the sher-iff's office on July 25 or 26 stated that no bonds would be honoreduntil further notice, and two bondsmen said that they had been una-ble to get anyone released from the Wayne County jail during theriot's early days. The refusal of the sheriff to release prisoners forwhom bonds had been posted produced a heated reaction fromJudges Frank Schemanske and Crockett. Crockett told Buback thathe would be held in contempt if he refused to honor bonds, and healso reproved the bond clerk. According to the director of the Uni-versity of Detroit's Urban Law Program, the sheriff sometimesfailed to release prisoners whose bonds had been posted because hecould not find them, which could have been true.32

As a further indication of their reluctance to see riot prisonersreleased, Recorder's Court judges virtually suspended the writ ofhabeas corpus during the disorder by making the relatively few writsfiled returnable only after a number of days. On July 24, for exam-ple, one judge set a hearing for July 31 on four writs brought beforeher, and writs brought the same day before another judge were notgranted until eight days later. Lawyers claimed that some judges"simply announced and/or put up signs" that they would not enter-tain any habeas corpus writs. Lawyers took a few writs to federalcourt on July 28, but the presiding judge set the hearing for July 31,which all but rendered the matter moot. 33

31. For a discussion of the arrest and bail procedure in the Watts riot, see I,BALBUS. supra note 3, at 51-52. For the Newark riot, see GOVERNOR'S SELECTCOMM. ON CIVIL DISORDER, REPORT FOR ACTION 132 (1968); see also T. HAYDEN.REBELLION IN NEWARK (1967); J.H. SKOLNIK, supra note 30, at 229-33.

32. 1. BALBUS, supra note 3, at 122, 159 n.92; Crockett, Recorder's Court,supra note 22, at 356; Comment, supra note 7, at 1550-51; Detroit Free Press, Sept.23, 1967; Y. Kamisar, supra note 6, at 3-4; Memorandum from Wilson to Nelson(Crockett interview), supra note 20; Deposition of Philip Colista, supra note 30;Address by Sengstock, supra note 21.

33. Comment, supra note 7, at 1577-78, 1580-81; Administration of Justice[1967] (available in Warren Christopher Papers, Box 15, Lyndon Baines Johnson

1736 [Vol. 33:1723

RIOTERS AND JUDGES

Early efforts to get the judges to alter their bail policy met withlittle success. The NLSC was especially anxious to persuade thecourt to set more reasonable bonds. Under the NLSC's new bailbond program, which went into effect on July 24, Judge Brennanauthorized NLSC attorneys to gather relevant information for bond-setting purposes from prisoners awaiting arraignment. Judge Crock-ett availed himself of the information the NLSC provided, but mostjudges at the outset would not even permit NLSC attorneys to inter-view defendants in their courtrooms. Attorney Ernest Goodman, whostood on the steps of the Recorder's Court on July 24 and 25 todenounce the court's bail policy and made a similar statement ontelevision, claimed later that his efforts produced "a tremendouslyadverse reaction from his white 'liberal' friends." On July 25, Michi-gan Supreme Court Justice Thomas Brennan met with the judgesand assured them that a majority of the State's supreme court jus-tices supported the Recorder's Court bail policy. 4

Pressure on the Recorder's Court to reconsider its bail policybegan to build after the first days of the riot. On July 25, represent-atives of several legal organizations met to formulate a strategy toreverse the high bail policy.35 NLSC and National Lawyers Guildattorneys proposed filing a writ of superintending control with theMichigan Court of Appeals directing the Recorder's Court to fixbail in accordance with constitutional requirements. Arguing thatsuch an action would have no immediate effect and would only an-tagonize the judges, Detroit Bar Association representatives pro-posed direct negotiation with the Recorder's Court and ProsecutorCahalan, the strategy that the group adopted. Those present at themeeting formed a Policy Committee that met each day during theriot and sought to work with the judges to secure a reduction in thebonds set for arrestees and to consider other legal problems stem-ming from the riot. When the Policy Committee met with JudgeBrennan that same day, he promised to end the court's high bond

Library); Y. Kamisar, supra note 6, at 8; Official Transcript of Comm'n on CivilDisorders, supra note 21, at 3803-04; Address by Sengstock, supra note 21.

34. 1. BALBUS. supra note 3, at 121; Colista & Domonkos, supra note 28, at326; Neighborhood Legal Services Center I (July-Aug. 1967) (newsletter) (availa-ble in Cavanagh Papers, Box 360, Archives of Labor & Urban Affairs, WayneState University) [hereinafter cited as NLSC Newsletter]; Responses to Civil Disor-ders in Detroit by the Mayor's Committee for Human Resources Development(available in Center for Urban Studies Papers, Archives of Labor & Urban Affairs,Wayne State University) [hereinafter cited as MCHRD Responses]; Memorandumfrom Dobranski & Ursu to Wilson (Goodman interview), supra note 18; Memoran-dum from Wilson to Nelson (Crockett interview), supra note 20.

35. Organizations represented at the meeting were NLSC, National LawyersGuild, Wayne County Suburban Legal Services, Detroit Bar Association, and theWolverine Bar Association (an association of black Detroit attorneys). 1. BALBUS,supra note 3, at 124.

19871 1737


policy and asked for the committee's assistance in achieving thatgoal. The court did not end the high bond policy, but some judgesdid begin to moderate their bond policy that day.36

Following the July 25 meeting with Brennan, the NLSC andthe Detroit Urban Law Program, which the OEO had funded in1965, dispatched NLSC attorneys and Urban Law Clinic students tointerview riot prisoners in Detroit, Milan, and Jackson so as togather information relevant to setting appropriate bonds. Two groupsof Volunteers in Service to America (VISTA) workers who hadgained experience in the bail programs in Philadelphia and Los An-geles aided the NLSC in verifying the information provided by ar-restees. Ultimately, the NLSC and the Urban Law Clinic sent morethan one thousand files to the Recorder's Court for the use of attor-neys and to aid the judges in setting or resetting bonds.37

The Metropolitan Detroit Branch of the American Civil Liber-ties Union (ACLU) joined the opposition to the court's bail policy onJuly 26. The day before, Ernest Mazey, the branch's executive direc-tor, said of the Recorder's Court, "'What is being done maybe is notconsistent with the highest ideals of justice, but under the circum-stances it's all that can be done.'" At an extraordinary session of thebranch the next day, however, the executive board, whose members,Mazey later stated, had "'panicked'" at the outset of the riot,called for "the prompt and individual review" of bonds as soon asarrest information became available, welcomed the efforts of theNLSC and the Urban Law Clinic to gather information, and urgedthat any judge who had "engaged in prejudicial conduct" in his offi-cial capacity be disqualified from handling riot cases.38

The major impetus to a change in the court's bail policy camefrom the federal government and the prosecutor's office. John Doar,head of the Civil Rights Division of the Department of Justice,thought that temporary detention without bail might be justified inan emergency, but he saw "no justification for a policy of arbitrarybail applied to everyone." By July 26 Prosecutor Cahalan was readyfor a change in bail policy because of jail overcrowding and rumorsof a possible prisoner revolt at the Wayne County jail, where condi-tions were intolerable. At a July 26 meeting of Doar, Cahalan, the

36. 1. BALBUS, supra note 3, at 124-25; Detroit Free Press, July 27, 1967;Charles S. Brown Summary (available in NACCD Records, Series 45, Box 15,Lyndon Baines Johnson Library); MCHRD Responses, supra note 34.

37. I. BALBUS, supra note 3, at 125; IN BRIEF 45 (Oct. 16, 1967); Colista &Domonkos, supra note 28, at 326 n.4; The Detroit News, July 30, 1967; id. Nov. 28,1965; NLSC Newsletter, supra note 34.

38. I. BALBUS, supra note 3, at 126-27; Detroit Free Press, July 26, 1967;Metropolitan Detroit Branch ACLU Release (July 27, 1967) (available in Metro-politan Detroit Branch ACLU Papers, Box 12, Archives of Labor & Urban Affairs,Wayne State University).

1738 [Vol. 33:1723

RIOTERS AND JUDGES

sheriff, police department representatives, and some state supremecourt and Wayne County Circuit Court judges, Cahalan agreed toassemble and match the arrest reports and arrest records of riot pris-oners and to recommend the release on their own recognizance ofthose without records who had not engaged in "aggravated vio-lence." Those present also agreed that prisoners did not have to bepresent when the court reviewed their bonds' and that the review didnot have to occur before the judge who had originally set the bond.39

Federal Judge Wade McCree on July 26 publicly attacked thehigh bail policy as "'dangerous'" and "'of questionable constitu-tionality.'" On July 27, prominent representatives of the black com-munity met with the Recorder's Court judges to protest the "fla-grant denials" of the civil liberties of arrestees. The next day theMichigan Civil Rights Commission (CRC) joined the protest againstthe Recorder's Court bail policy by urging the judges to set personalbonds for minor offenders and fair bonds for all other arrestees andto accord prisoners their due process rights. Justly concerned aboutthe treatment of riot prisoners, the Michigan CRC requested permis-sion to send CRC observers to police precincts and other places ofdetention.4 °

As of July 28, the court had released relatively few arrestees,partly because of difficulty in locating court files and because thesheriff still "'didn't know where anyone was.'" As of that date onlytwo percent of the riot arrestees had been released on personalbonds, most of them by Judge Crockett. In 1966, the court had re-leased twenty-six percent of arrestees on their own recognizance.

With concern mounting about a possible uprising at Jacksonprison, Governor George Romney and Mayor Jerome Cavanaghsought on July 28 to add their weight to the effort to persuade thecourt to alter its bail policy. To pressure Judge Brennan to act,Romney apparently threatened to use the State Fairgrounds as "alarge 'concentration camp'" for the prisoners, even though thiswould have harmed the State Fair. With questionable authority,Cahalan also was talking of unilaterally releasing prisoners whoserecords warranted the action or seeking authority from the governorto do so. At a July 28 press conference following a meeting of Rom-ney, Cavanagh, Cahalan, Vance, Doar, and the judges, the governorannounced that the prosecutor's office would supply the court that

39. 1. BALBUS. supra note 3, at 122-23, 127-29; [Doar] Lessons Learned(available in Warren Christopher Papers, Box 15, Lyndon Baines Johnson Library);Vance Report, supra note 7, at 43-44. John Doar was in Detroit at the time as partof a federal riot team headed by Cyrus Vance.

40. Crockett, Recorder's Court, supra note 22, at 356; The Detroit News,July 27, 1967; Letter from Damon J. Keith et al. to Lyndon Baines Johnson (July28, 1967) (available in Comm'rs File, Detroit Police Dep't).

1987] 1739


night the records of 2,000 prisoners to review. Judge Brennan statedthat now that arrest records were being made available, the judgeswould begin to set personal bonds for those without arrest recordsand who had not been "a major factor" in the riot. Brennan alsoagreed that it would not be necessary to match the records providedby the prosecutor with the corresponding court files.

The next day, thanks to the information provided by the NLSCand the Urban Law Clinic and the efforts of the prosecutor, Romneywas able to announce that 1,400 prisoners had been ordered re-leased. The court released most of these prisoners on their own re-cognizance and some after having pleaded guilty to violating the cur-few and then being sentenced to the number of days that they hadalready spent in jail. By August 4, only 1,200 of the riot arresteesremained incarcerated, and the number had dwindled to 350 by Au-gust 10. Of those released, the police rearrested only one, for a cur-few violation, during the rest of the riot. Cahalan regarded his of-fice's role in this effort as "one of the finest things his office did"during the riot. He concluded, however, that it had been a mistake toarraign arrestees before checking arrest and conviction records andthat waiting for this information would not have violated the require-ment that arrestees be brought before a magistrate without delay.41

The court's high bond policy placed a crushing burden on thedetention facilities in the city and county. Conditions were abysmalfor both prisoners waiting arraignment, who were the responsibilityof the police department, and those already arraigned, who were theresponsibility of the Wayne County Sheriff. To quote a KernerCommission investigator, riot prisoners were "detained under condi-tions that were enough to make a vulture puke." By the afternoon ofJuly 24, the detention cells in the precinct stations and at policeheadquarters were overflowing with prisoners, and Detroit was re-ported to have run out of prison space. Once the cell blocks in someprecincts filled to three or even five times their capacity, some pris-oners were transferred to police headquarters; but when the cellblocks there also filled up, prisoners, if at all possible, were kept inthe precincts until they could be brought to Recorder's Court for

41. Capability Hearings, supra note 26, at 6291-97; 1. BALBUS, supra note 3,at 122-23, 128; NACCD REPORT, supra note 3, at 185 n.7; Crockett, Recorder'sCourt, supra note 22, at 356; Cahalan, supra note 6, at 433-34; Comment, supranote 7, at 1551; Vance Report, supra note 7, at 45, 47; Capture and Record of CivilDisorder in Detroit, July 23 through July 28, 1967 (available in Romney Papers,Box 345, Michigan Historical Collections) [hereinafter cited as Capture & Record];MCHRD Responses, supra note 34; Minutes of First Meeting of Co-ordinatingCommittee to Deal with Riot Prisoners (July 28, 1967) (available in Romney Pa-pers, Box 345, Michigan Historical Collections); Memorandum from Dobranski toWilson (Cahalan interview), supra note 15; Memorandum from Wilson to Nelson(Crockett interview), supra note 20.

[Vol. 33:17231740

RIOTERS AND JUDGES

arraignment. According to an apocryphal story that made therounds, when a police officer in one precinct opened a closet door,prisoners fell out. The advice of his superior when the officer askedhim what he was to do was not to "'open any more closet doors.' "42

Conditions were at their worst in the Tenth Precinct, where theriot centered and in which the police arrested 1,398 adults. After thecells in the precinct filled, the police placed additional arrestees inthe filthy precinct garage, where 150 to 200 prisoners were confinedin a space that one prisoner described as being "the size of a ping-pong room." The garage had no toilet-a greasy pool in the centerof the floor, whose drain was stopped up for a time, served that pur-pose. One prisoner complained that when he asked a guard for per-mission to use a toilet, he was hit with a rifle; when he used thefloor, he suffered the same fate. The prisoners, many of whom hadbeen "beaten badly," were not allowed to make phone calls. Toamuse themselves, Guardsmen fired blanks at the arrestees.43

A black photographer, whom the police had falsely imprisonedand put in a makeshift precinct detention area with fifty-five otherprisoners, remarked that the "cell became unbearable" and that "wewere starving [and] dirty." The prisoners begged for food, and fightsbroke out among them when the guard appeared. "We were not farfrom becoming the animals our guards believed us to be," the pho-tographer observed. "Everything I had believed about the countryjust didn't seem real anymore." 44

Prisoners brought downtown to police headquarters while await-ing arraignment were initially lodged in the thirteen detention cellsin the building. Nine hundred prisoners were crowded into cellblocks on two different floors that were intended for 184 persons.Males and females were separated for the most part, but some mix-ing took place. It was impossible for the prisoners to sleep since therewas not enough room for them to lie down.45

42. I. BALBUS, supra note 3, at 128, 159 n.97; V.G. SAUTER & B. HINES,supra note 27, at 146-47; NACCD REPORT, supra note 3, at 185; Comment, supranote 7, at 1572-73; A. Callewaert & A. Yim, supra note 12, Appendix A; DetroitRiot, A Challenge, supra note 22, at 39; Memorandum from Detroit to Director ofFBI (July 24, 1967) (available in FBI Records, obtained under Freedom of Infor-mation Act); Interview with Cahalan, supra note 10, at 9.

43. J. HERSEY, supra note 9, at 113-14; W.W. SCOTT III, HURT, BABY, HURT154, 160 (1970); STATISTICAL REPORT, supra note 3, at 9; The Detroit News, July30, 1967; Detroit Free Press, July 29, 1967; Letter from John Nelson Casey toGovernor George Romney (July 29, 1967) (available in Romney Papers, Box 186,Michigan Historical Collections); Deposition of Robert Rubin et al. (Jan. 11, 1968)(available in NACCD Records, Series 32, Box 3, Lyndon Baines Johnson Library);Interview of Nathan Caplan with William Walter Scott III 6-11 (Nov. 4, 1967)(transcript available from author).

44. Clark, Nightmare Journey, 22 EBONY, Oct. 1967, at 128-29.45. 1. BALBUS, supra note 3, at 116; Cahalan, supra note 6, at 431; Detroit

1987] 1741


Prisoners who could not be lodged in cell blocks at police head-quarters were placed in the building's underground garage or inseven busses parked outside. The conditions in the garage, in whichthe police confined as many as 1,000 prisoners at one time, weredeplorable. Grease and urine covered the cement floor on which thearrestees had to relieve themselves, creating a horrible stench. Onlyone source of drinking water was available, and, as in the Tenth Pre-cinct garage, prisoners went hungry for long periods of time. Oneprisoner recalled that when the guards passed food in, the prisonerswould try to "beat somebody out of a place in line for a second sand-wich. . . . I learned to think like an animal and feel like ananimal-and was dirty enough to be an animal," he told aninterviewer.46

The prisoners on the busses, each of which held up to seventy-five persons, were, for the most part, segregated by sex. The guardsbrought the prisoners water in a bucket and served them sand-wiches-"they gave you a little bit to make you want more." Ini-tially, the guards permitted the prisoners to leave the bus one at atime to relieve themselves alongside the bus, but later a single porta-ble latrine was made available for them. Some arrestees remained onthe hot busses for more than twenty-four hours. As in the precincts,prisoners at police headquarters were not permitted to make phonecalls.47

When brought to Recorder's Court, prisoners were placed inone of the court's "bullpens" to await their arraignment. At onepoint during the riot week, 750 prisoners were confined in spacesdesigned for a maximum of 360 persons. Sometimes they remainedin a bullpen overnight, "stuffed in like sardines" and forced to stand.When arraigned, those who could not make bail were supposed to betransferred to the Wayne County jail. The jail, however, wasdesigned for 1,260 prisoners, and 1,099 inmates were already in thefacility the day before the riot began. By July 25 the jail held 1,772prisoners. As many as 150 prisoners were crammed into holdingtanks with a normal capacity of fifty. Since each tank had only onesanitary plumbing fixture, the stench as well as the heat became al-most unbearable.4

Free Press, July 26, 1967; Interview of Caplan with Scott, supra note 43, at 17.46. NACCD REPORT, supra note 3, at 185; W.W. ScoTT III, supra note 43,

at 165-69, 174-77; Detroit Free Press, July 25, 29, 1967; Capture & Record, supranote 41; Interview of Nathan Caplan with arrestee 2 (Nov. 9, 1967) (transcriptavailable from author); Interview of Caplan with Scott, supra note 43, at 15-16.

47. H. LOCKE, supra note 2, at 50; NACCD REPORT, supra note 3, at 60,185; Comment, supra note 7, at 1576-77 & n.145; Detroit News, July 29, 1967; id.July 26, 1967, Deposition of Rubin et al., supra note 43; Interview of Caplan withScott, supra note 43, at 2; Interview of Caplan with arrestee, supra note 46, at 2.

48. 1. BALBUS, supra note 3, at 123, 159 n.97; Cahalan, supra note 6, at 430;

1742 [Vol. 33:1723

RIOTERS AND JUDGES

In addition to the prisoners in the county jail, about 2,000 pris-oners in the precincts, police headquarters, and on the busses wereawaiting transfer to the county jail, but there was obviously no roomfor them. This forced local authorities to turn to the state and fed-eral government for assistance. The state prison at Jackson alreadylodged some riot prisoners, and after some initial resistance, the fed-eral government offered additional space in Milan, the state govern-ment at Ionia as well as Jackson, and county governments inMonroe, Washtenaw, and Ingham Counties. As of the morning ofJuly 28, 1,805 riot prisoners were being held outside Detroit, 1,186of them in Jackson prison.4 9

The transfer of prisoners out of Detroit did not entirely solve theprisoner detention problem. On July 27, at a "very chaotic meeting"of the governor and city, county, and court officials, someone raisedthe possibility of using the large Cobo Hall garage. The city's corpo-ration counsel, however, advised Cahalan that this could not be donelegally and suggested instead the woman's bathhouse on Belle Isle.After police department and Department of Street Railways person-nel modified the Belle Isle structure to accommodate prisoners,about 500 arrestees were moved there on July 29. Since some prison-ers had been infested with lice, the county health department had todelouse what became the prisoner compound. "Belcatraz," as the fa-cility came to be known, "with every cell a showerbath," was used asa detention facility until August 13. There was no hot water therefor showering or shaving, and the co-chairman of the state CivilRights Commission recalled that he was "deeply disturbed" aboutconditions at Belcatraz. The consensus opinion of the commission'sinspection staff, nevertheless, was that the sheriff was "doing asgood a job as possible" under the circumstances and that there wasno indication that the prisoners there had been physically abused, asthey had been in other detention places in Detroit. With the openingof Belcatraz, some of the prisoners being detained outstate could bebrought back to Detroit. °

Detroit Free Press, July 26, 1967; Letter from J.W. McGinnis to R.A. Miller (Oct.16, 1967) (available in NACCD Records, Series 45, Box 17, Lyndon Baines John-son Library).

49. Locke, Riot Response: The Police and the Courts, in RIOT IN THE CITIES321 (R. A. Chikota & M. C. Moran eds. 1967) [hereinafter cited as Locke, Policeand the Courts]; A. Callewaert & A. Yim, supra note 12, at 44; Official Transcriptof Comm'n on Civil Disorders, supra note 21, at 3795; Prisoner Popula-tion-Morning of July 28, 1967 (available in Romney Papers, Box 345, MichiganHistorical Collections); Letter from McGinnis to Miller, supra note 48.

50. I. BALBUS. supra note 3, at 128-29; J. HERSEY, supra note 9, at 54; H.LOCKE. supra note 2, at 50-51; W.W. SCOTT III, supra note 43, at 196; DetroitFree Press, July 30, 1967; A. Callewaert & A. Yim, supra note 12; Capture &Record, supra note 41; Civil Disturbance, Detroit, Health Department Activities,

1987] 1743


Quite apart from the physical abuse and discomfort prisonerssuffered, the inability of authorities to provide a master list of ar-restees and their inability to communicate with the outside meantthat the authorities sometimes could not locate arrestees for judicialor release purposes and that relatives did not know where familymembers were being held. "[T]he system," Deputy United StatesAttorney General Warren Christopher remarked, "sometimes frus-trated the obtaining of legitimate information about persons con-fined." Prisoners simply "sort of vanished" for a few days, the De-troit Free Press referring to one such prisoner as an "invisible man."Six months after the riot, according to one attorney, riot arresteeswere still turning up in jail who had been missing since late July.Until the police were able to provide a master list of prisoners, theNLSC served as an information center, answering hundreds of re-quests to locate missing prisoners. Individual attorneys also per-formed this role. One of them recalled that when he walked out ofthe Recorder's Court building, people waiting outside would call outnames, and he would go inside to see what he could learn about thelocation of these individuals. 1

On July 28, after "two frantic days" of tracing prisoners dis-persed about the state, the police department opened a prisoner in-formation center in police headquarters. At a meeting that day ofthe newly created Co-ordinating Committee to Deal with Riot Pris-oners, which consisted of representatives from the prosecutor's office,the Recorder's Court, the Department of Justice, the police depart-ment, and the Michigan Supreme Court, Brennan agreed that thepreparation of a master list of prisoners was the first priority. Thepolice, however, were not able to provide a master list of all riotdetainees until August 1 2

July 23-August 1, 1967 (available in Cavanagh Papers, Box 533, Archives of Labor& Urban Affairs, Wayne State University); Letter from Walter R. Greene to Bur-ton I. Gordin (Aug. 8, 1967) (available in Records of Mich. Civil Rights Comm'n,Administration, Box 11, Record Group 74-90, State Archives, Lansing, Mich.); Let-ter from Fred J. Romanoff et al. to Jerome P. Cavanagh (July 31, 1967) (availablein Cavanagh Papers, Box 398); Interview with Cahalan, supra note 10, at 9-10;Interview with Damon Keith 23 (June 21, 1985) (available in Michigan HistoricalCollections).

51. NAACD REPORT, supra note 3, at 60, 184; Administration of Justice,supra note 33; The Detroit News, Oct. 15, 1967; Detroit Free Press, July 29, 1967;NLSC Newsletter, supra note 34; Memorandum from Herbert Wilson to RobertNelson (interview with Henry Cleage) (undated) (available in NACCD Records,Series 59, Box 2, Lyndon Baines Johnson Library); Interview of Nichols with ElliottHall (tape in author's possession); Interview of Nichols with Morcum & Wahls(tape in author's possession).

52. H. LOCKE, supra note 2, at 50; Detroit Free Press, July 29, 1967; A.Callewaert & A. Yim, supra note 12, Exhibit A; Letter from SAC Detroit to Direc-tor of FBI (Aug. 1, 1967) (FBI Records obtained under Freedom of Information

1744 [Vol. 33:1723

RIOTERS AND JUDGES

By the end of July the Recorder's Court had arraigned and setbond for most of the riot prisoners. Arraignments were handled on''a mass production basis," one thousand prisoners being arraignedon July 25 alone. As John Emery, head of the Detroit Legal Aid andDefender Association, chairman of the Detroit Bar Association'sCriminal Law Committee, and a part-time Birmingham, Michigan,municipal court judge, put it, "They were on the old assembly line,with the Detroit sound, Detroit style, and they were shuffled throughawfully fast." One judge thus told fifteen or twenty defendants linedup before him that they were accused of EW/OB, the bond was$10,000, and the date for their preliminary examination was August1. "'You heard what I said to them,'" he told the next group ofdefendants. "'That applies to you too.'" One can well understandthe judgment of one reporter that "any honest observer" would haveto conclude that the riot arrestees were "handled . . .like so manysides of beef or so many bodies in a market." "We didn't get anydue process of law. We got railroaded," one arrestee declared."While the judge was carrying on the due process of law, he didn'teven look at you." 53

Although Sengstock and Emery claimed that riot defendantswere not always apprised of their constitutional rights at their ar-raignment, 54 the judges denied this.5 5 Although counsel was not re-quired at this stage, some judges failed to advise defendants that

Act); Letter from Henry S. Sedmark to John Nichols (Aug. 9, 1967) (available inDetroit Recorder's Court); Minutes of First Meeting of Co-ordinating Committee toDeal with Riot Prisoners, supra note 41.

53. NACCD REPORT, supra note 3, at 185 & n.6; W.W. Scorr III, supranote 43. at 185; Comment, supra note 7, at 1547-48, 1554-55, 1557; Detroit FreePress, Oct. 15, 1967; id. July 31, 1967; id. July 26, 1967; Detroit Riot ScrapbookNo. I (available in Michigan Historical Collections); Detroit Riot, A Challenge,supra note 22, at 15-16.

54. For example, Professor Sengstock in an address before the American As-sociation of Law Schools stated:

The right to counsel was not adequately explained to the accused. Hisright to have an attorney appointed, if he could not retain one, was notexplored. He was not advised what a preliminary examination was. ...The nature of his offense was not explained to the accused and often hewas not informed of his right to a jury trial. The assembly line techniqueadopted by the court left those uneducated in the process as bewilderedafter their arraignment as before.

Address by Sengstock, supra note 21, quoted in Comment, supra note 7, at 1556.Judge Emery, in a panel discussion presented at the University of Michigan

Law School, also asserted that "[p]eople just were not advised of their constitutionalrights at the arraignment on the warrant-they were shuffled through the line."Detroit Riot, A Challenge, supra note 22, quoted in Comment, supra note 7, at1556.

55. Comment, supra note 7, at 1556 & n.59 (citing interview with JudgesBrennan and Gillis, Aug. 1967).

1987] 1745


counsel could represent them, and some judges even barred lawyersfrom their courtrooms. One judge told an attorney that defendants inhis court would not be permitted to see an attorney because "'thereisn't time for those niceties.'" On July 24, John Emery as well assome bar association attorneys suggested that the court appoint at-torneys to represent the indigent from the arraignment stage to theirtrial, but the judges were unwilling to agree to this "continuity ofcounsel" idea. When a Detroit News reporter asked Brennan if apublic defender system would have been helpful, he replied, "'Whatare you anyway, a blinking bleeding heart?'" Three judges did availthemselves of the offer of volunteer counsel, but Emery reported thatit turned out to be "a pretty perfunctory service" because of thebond policy the judges were following. Emery noted that a fewjudges, who admittedly were thinking of appeals, "lined the defend-ants up, like pigs, . . . 15-20 at a time," and told them that a lawyeror Legal Aid representative was present to advise them of theirrights.56

The preliminary examinations, whose purpose was to determinewhether probable cause existed to believe that a particular defendanthad committed a crime, began on August 1. The examinations wereheld from 9:00 a.m. to 9:00 p.m. and continued for about two weeks,with judges working two six-hour shifts to process the large numberof cases. Michigan law required that defendants who did not waivetheir right to the preliminary examination be examined within tendays of their arraignment on the warrant. The court neither waivedthis rule because of the large number of arrestees, nor did it alwaysadhere to it. Philip Colista, head of the Urban Law Project, sug-gested that the defendants be examined in order of the date of theirincarceration, a sensible idea considering the conditions of confine-ment and the fact that some arrestees were losing their jobs becauseof their inability to report to work. The court, however, did not adoptthe Colista suggestion.57

Normally, about two-thirds to three-fourths of the defendants inRecorder's Court waived their right to a preliminary examination,but only thirty-eight percent (1,224 of 3,230) of the riot felony de-fendants did so. Although the assistant prosecutors and the judgespressured defendants to waive their right to an examination, attor-neys often counseled their clients not to do so in the hope that their

56. I. BALBUS, supra note 3, at 121, 124-25; Comment, supra note 7, at 1553-54, 1556; Joyce, American Dream Plagues Detroit, 19 NAT'L GUARDIAN, Aug. 5,1967, at 5; The Detroit News, July 31, 1967; The Detroit Free Press, July 26, 1967;Detroit Riot, A Challenge, supra note 22, at 12-14; Official Transcript of Comm'non Civil Disorders, supra note 21, at 3804-05; Address by Sengstock, supra note 21;Interview with Crockett, supra note 18, at 10-11.

57. I. BALBUS, supra note 3, at 132-33; Comment, supra note 7, at 1594-1601.

1746 [Vol. 33:1723

RIOTERS AND JUDGES

case would be dismissed. This was not an unreasonable expectationgiven the state of evidence in many cases. Counsel also feared thatpleas that accompanied waiving might not be honored at a latertime. Some defendants did waive their preliminary examination onthe promise that their charge would be reduced to a misdemeanor. 58

Defendants were entitled to counsel for their preliminary exami-nation, and the court was required to provide counsel for the indi-gent. About seventy percent of the riot defendants could not affordcounsel, which posed serious manpower and funding problems forthe Recorder's Court. In 1966, the court had appointed counsel in2,552 cases at a cost of $328,685. Now it was faced with the neces-sity of providing counsel in just about as many cases stemming fromthe riot alone. Detroit did not have an organized defender system ineffect at the time of the riot. Although Detroit had agreed to initiatea private defender system administered by the Legal Aid and De-fender Association, it was not scheduled to go into effect until theend of 1967. As a result, on July 28, Governor Romney, MayorCavanagh, and Judge Brennan requested the Detroit Bar Associa-tion, the state bar, and the Wolverine Bar to provide volunteers todefend indigent arrestees. "[I]f we are to advocate justice in normaltimes," the telegram stated, "we must surely practice justice in ab-normal times."159

Although the Detroit bar enjoyed a reputation of being moreliberal and more committed to the defense of civil rights than mostbig city bars, the Detroit Bar Association, as such, had done rela-tively little during the first week of the riot to protect the rights ofriot arrestees. According to Professor Sengstock, the riot "para-lyzed" the bar, including attorneys among the left-leaning NationalLawyers Guild. "[E]verything was burning . . . we were stunned,"one attorney declared. The president of the state bar conceded thatthe Bill of Rights had not been observed in some instances duringthe riot's first week, but, he asserted on July 31, "'there wasn't aconstitutional question last week, there was a question of survival.'"Reacting like lawyers in other riot cities, Detroit attorneys may havebeen "intimidated" to some degree by the law enforcement personnelwho surrounded the Recorder's Court and the soldiers seated in thecourtrooms, "rifles held at the ready." 60

58. 1. BALBUS, supra note 3, at 135-36; 1967 RECORDER'S COURT REP., supranote 19, at 3-4; Cahalan, supra note 6, at 432-33; Official Transcript of Comm'non Civil Disorders, supra note 21, at 3809-10.

59. 1. BALBUS, supra note 3, at 133-34; Comment, supra note 7, at 1595 &n.246, 1603-04; Detroit Free Press, July 30, 1967; Telegram from Jerome P.Cavanagh, Governor George Romney & Vincent Brennan to Thomas L. Munson(July 28, 1967) (available in Romney Papers, Box 186, Michigan HistoricalCollections).

60. I. BALBUS, supra note 3, at 35-36, 127; J.H. SKOLNICK, supra note 30, at

1987] 1747


The plea for legal assistance produced a very favorable reactionamong the bar, with 703 attorneys volunteering for the role. Theyranged from attorneys fresh out of law school to a former justice ofthe Michigan Supreme Court. About 550 of the volunteers were ac-tually pressed into service, each generally serving for one six-hourshift. Because few of the volunteers had criminal law experience,they were given a fifteen-minute lecture by experienced counsel suchas John Emery before the session of the court at which they were toappear to acquaint them with the nature of the preliminary exami-nation. They were also provided with a manual hurriedly preparedby the NLSC and the Urban Law Program that covered criminaldefense practices and procedures, providing, it was said, "handy tipsfor naive lawyers." Some Recorder's Court judges regarded the "riotbible" as unethical and as "unduly disrespectful of the judicial ma-chinery." Once they had completed their "instant criminal law"course, the volunteer lawyers were assigned in teams to particularcourtrooms, not to particular defendants. NLSC and Wayne CountySuburban Legal Services attorneys were not permitted to appear infelony cases, but they served as "trouble shooters" during the periodof the preliminary examinations.6'

Confusion often marked the conduct of the preliminary exami-nations for riot arrestees. Bringing the defendant and his file to-gether in the same courtroom simultaneously proved to be difficult.Sometimes the defendant could not be found when his name wascalled, sometimes his file could not be found, and sometimes it ar-rived at the wrong courtroom. The nonappearance of defendants ledto 262 adjournments, sometimes followed by the decision of an angryjudge to set a higher bond for the absent defendant or to impose abond on a defendant who had been released on a personal bond. Oc-casionally the court examined six to eight defendants at once.

Lawyers complained that they did not have enough time to con-sult with their clients and that there was no proper place for them todiscuss the upcoming examination with them. Quite often the law-yers spent no more than ten minutes with a set of clients before acase was called, the discussion carried on in a noisy hallway or

226; Detroit Free Press, Aug. 1, 1967; Detroit Riot, A Challenge, supra note 22, at16; NLSC Newsletter, supra note 34; Official Transcript of Comm'n on Civil Dis-orders, supra note 21, at 3811; Memorandum from Herbert Wilson to Robert Nel-son (interview with Charles S. Brown) (undated) (available in NACCD Records,Series 45, Box 17, Lyndon Baines Johnson Library); Address by Sengstock, supranote 21.

61. 1. BALBUS, supra note 3, at 134-35; Cahalan, supra note 6, at 433; Com-ment, supra note 7, at 1604-05; IN BRIEF 45, Oct. 16, 1967; The Detroit News,Aug. 5, 1967; Y. Kamisar, supra note 6, at 9; Charles S. Brown Summary, supranote 36; Footnote to Introduction, supra note 6; NLSC Newsletter, supra note 34;Official Transcript of Comm'n on Civil Disorders, supra note 21, at 3809.

1748 [Vol. 33:1723

RIOTERS AND JUDGES

courtroom or perhaps through the bars of a Recorder's Court bull-pen. Judges were reluctant to grant adjournments even though thecase might be called before the lawyer knew the charge or before hehad the opportunity to see the police file. Lawyers grumbled alsothat some judges saw them as "an accommodation to the Court," notas participants in an adversarial process. The judges harassed andinterrupted counsel and sometimes restricted their opportunity tocross-examine witnesses.

Some judges showed little concern for the "competency of evi-dence" in binding defendants over for trial. One judge, for example,stated that "no motions to suppress evidence would be entertained inhis courtroom." Although the rules of evidence required personalidentification, judges sometimes permitted police officers to identifydefendants from the photographs taken at the precinct stations, pho-tographs that were sometimes less than clear. As previously indi-cated, the photographs of alleged looters also contained pictures ofthe goods they had supposedly seized, but several defendants claimedthat the police gave them something to hold just before their pictureswere taken. In one case, according to an attorney, five persons ar-rested at the same time were each shown holding the same broomand the same can of aerowax. Although defendants were accordedtheir right to counsel in the preliminary examinations, many of themwere denied the "effective counsel" Michigan law specified.6 2

Of the 1,920 preliminary examinations held, forty-four resultedin guilty pleas. Whereas about twenty percent of the preliminary ex-aminations in Recorder's Court normally ended in dismissal, aboutforty-eight percent (919 of 1,920) of preliminary examinations ofriot defendants had this Tesult. Of these, the court dismissed 546,373 were dismissed on motion of the prosecutor. Although the num-ber of dismissals is a good indication of the weakness of the evidenceagainst many defendants, some cases had to be dismissed because ofprocedural difficulties such as the failure of material witnesses toappear. 63

62. For the conduct of the preliminary examinations, see 1. BALBUS, supranote 3, at 135; NACCD REPORT, supra note 3, at 186; Comment, supra note 7, at1602 & n.283, 1605-20; Detroit Free Press, Aug. 8, 1967; id. Aug. 5, 1967; TheDetroit News, Aug. 4, 1967; Detroit Free Press, Aug. 2, 1967; Y. Kamisar, supranote 6, at 10; Footnote to Introduction, supra note 6; Letter from William Whit-beck to Michael Levin (Aug. 9, 1967) (available in Romney Papers, Box 345, Mich-igan Historical Collections); Address by Sengstock, supra note 21.

63. Riots, Civil and Criminal Disorders: Hearings Before the Subcomm. onInvestigations of the Senate Comm. on Government Operations, 90th Cong., 2dSess. 1585 (1968) [hereinafter cited as Riot Hearings]; I. BALBUS, supra note 3, at136-37; Footnote to Introduction, supra note 6; Letter from William Cahalan toJames Brickley (Aug. 14, 1967) (available in Comm'rs File, Detroit Police Dep't);Memorandum from Dobranski & Ursu to Wilson (Brenjnan interview), supra note

1987] 1749


For those defendants bound over for trial on the preliminaryexamination or who waived the examination, the prosecution had todraw up an information formally stating the charge, to which thedefendant then pleaded. The court arraigned one hundred riot ar-restees on the information in a twelve-hour day. The arraignmentson the information began late in August 1967 and continued untilMarch 1968, by which time the court had held arraignments for2,059 of the 2,189 defendants bound over for trial, with 119 capiasissued for nonappearance, and three arraignments still pending. Thecourt used only paid counsel for the indigent at this stage, each ap-pointed attorney receiving $200 a day. The court may have preferredto use appointed counsel at this stage not only for " 'patronage'"reasons but also because they were more likely to "'cop a plea"'than the volunteers. The same "'assembly-line justice'" that hadcharacterized the judicial process in the Recorder's Court up to thispoint in handling riot prisoners was again utilized during this laterstage of the criminal process. The two lawyers assigned to eachcourtroom generally were able to spend only fifteen to twenty min-utes with the defendants whom they were representing.

The court dismissed forty-one of the arraignments on the infor-mation cases, thirty-eight on motion by the prosecution, and three bythe court. The plea bargaining that occurred at this stage persuaded557 (twenty-seven percent) of the 2,059 defendants arraigned on theinformation to plead guilty, just slightly above the twenty-five per-cent who normally pleaded guilty at this stage of the proceedings inRecorder's Court. Most of those who pleaded guilty agreed to do sobecause the prosecutor was willing to reduce most looting charges toa misdemeanor, with time already served as the sentence for thosepleading guilty who did not have a criminal record. Although thiswas a departure from normal procedure, the large number of defend-ants, the tremendous strain on the judicial system that setting allcases for trial would cause, and concern about the future may ex-plain the leniency of this arrangement. "'If we jailed these peoplewith no previous record,' " one court official declared, "'we mightbe in trouble all over again.' ,,64

Of the 1,653 misdemeanor arrests that were processed, 1,030,nearly all curfew violations, came to trial. The misdemeanor trialsbegan on August 1, and two judges quickly disposed of them while

20.64. Riot Hearings, supra note 63, at 1584-85; 1. BALBUS. supra note 3, at

140-41; 1967 RECORDER'S COURT REP., supra note 19, at 4; Cahalan, supra note 6,at 433; Comment, supra note 7, at 1622-27; Detroit Free Press, Oct. 15, 1967; Y.Kamisar, supra note 6, at 10-11; Detroit Riot, A Challenge, supra note 22, at 22-23; Official Transcript of Comm'n on Civil Disorders, supra note 21, at 3810;Memorandum from Dobranski to Wilson (Cahalan interview), supra note 15.

1750 [Vol. 33:1723

RIOTERS AND JUDGES

the preliminary examinations were underway. About twenty percentof the defendants were represented by counsel secured by the NLSCand the Urban Law Program, about twenty percent had paid orcourt-appointed counsel, and sixty percent went unrepresented. As ofJanuary 19, 1968, 642 (64.2 %) of those accused of misdemeanorshad beenconvicted, 173 acquitted, 125 dismissed, and 90 cases werepending final disposition. The sixty-four percent conviction rate ofriot arrestees compared with an eighty-eight percent conviction ratein 1965, reflecting evidentiary problems and, possibly, better repre-sentation of riot arrestees. Most cases were disposed of by guiltypleas, a few by jury trials, and the remainder by bench trials. Thecases proceeded rapidly because defendants were advised or becameaware that the guilty would be sentenced to nothing more than timeserved. Only three to four percent of the guilty were sentenced toadditional time.65

The curfew for whose violation the misdemeanants had beenfound guilty had been ordered by an emergency proclamation issuedby Governor Romney at midnight on July 23. Michigan law madethe violation of such a proclamation a misdemeanor, but Romneyhad initially neglected to include the violation provision in the proc-lamation, an omission that was later corrected. In an effort to securethe release of apprehended curfew violators, the NLSC sought tohave the proclamation declared invalid because of its alleged legaldefects. The NLSC obtained the release of seventy defendants on ahabeas corpus writ, but its efforts to secure a "definitive ruling" onthe subject were rendered moot by the misdemeanor trials.66

Felony trials began in October 1967, with most cases not dis-posed of until the following spring. Of the 1,871 cases (ninety per-cent of all cases) completed as of August 9, 1968, 1415 (seventy-fivepercent resulted in convictions), almost all of them on guilty pleas tomisdemeanor offenses. Pleading guilty to a reduced charge was com-mon in Recorder's Court, but it was unusual for the court to permitdefendants accused of felonies to plead guilty to misdemeanors.Nearly all of the guilty were sentenced to time already served, re-ceived suspended sentences, were placed on probation, or fined less

65. Riot Hearings, supra note 63, at 1346; I. BALBUS, supra note 3, at 119,130, 138-39; Cahalan, supra note 6, at 432-33; Detroit Free Press, Aug. 7, 1967.Conviction for violating the governor's curfew carried a maximum sentence of 90days in jail and/or $100 fine. The misdemeanor docket for riot arrestees wascleared within two weeks because of the policy established by the court to informdefendants that their sentences would be reduced to time served in exchange for aguilty plea. I. BALBUS, supra note 3, at 138.

66. Crockett, Recorder's Court, supra note 22, at 352; Michigan Chronicle,May 11, 1968; The Detroit News, July 28, 1967; Charles S. Brown Summary,supra note 36; MCHRD Responses, supra note 34; NLSC Newsletter, supra note34.

1987] 1751


than $100. Only about three percent of the guilty received jailsentences extending beyond time served, and fewer still received truefelony sentences of one year or more. In 1965, by comparison, fifty-seven percent of convicted felony defendants were jailed. The pleabargaining for riot defendants at this stage, as with defendants ar-raigned on the information, was conducted on a "'take it or leaveit'" basis by the prosecutor, the critical factor being the defendant'sprior record. Of the 473 felony defendants as of August 9, 1968, whodid not plead guilty, 456 escaped conviction, 411 because the courtdismissed their case or the prosecutor moved for dismissal. Seventeenpersons were found guilty in the forty trials held by that time. 7

Of the 6,528 adults arrested during the riot, about one-thirdhad pleaded guilty or been convicted a year later, with less than tenpercent of the cases still pending. Of the arrestees prosecuted (74.8%of the total arrested), about one-half of those accused of felonies andabout one-third of those accused of misdemeanors escaped convic-tion. The relatively small number of convictions was the result of theindiscriminate character of the arrests, the sketchiness of the evi-dence against many defendants because of the difficulty the policefaced in making on-site investigations, and the failure of store own-ers in particular to appear at preliminary examinations as com-plaining witnesses. Also, because of the sheer number of defendants,there was pressure to dispose of the cases in order to relieve theenormous strain on the judges and to get people out of jail.68

Since Michigan did not have a statute concerning sniping, theprosecutor's office charged the twenty-six alleged snipers with "as-sault with intent to commit murder." Of the twenty-six, one firstpleaded guilty to felonious assault but later denied guilt, and thecourt subsequently dismissed his case on motion of the assistantprosecutor; one pleaded guilty to a lesser charge; and the court dis-missed all the other sniping cases for one reason or another. JudgeBrennan later explained that the police had not seen any of thetwenty-six actually holding or discharging a firearm. They had beenarrested by police officers in "very excited states of mind" who hadheard shots, searched the suspected buildings, decided where theshots came from, and arrested any "'suspicious looking' " personsthere.6 9

67. Riot Hearings, supra note 63, at 1346, 1585; 1. BALBUS, supra note 3, at142-45; J.S. CAMPBELL, J.R. SAHID & D.P. STANG, supra note 14, at 544; MichiganChronicle, May 11, 1968.

68. NACCD REPORT, supra, note 3, at 184; Minutes of First Meeting of Co-ordinating Committee to Deal with Riot Prisoners, supra note 41; Interview withCrockett, supra note 18, at 16-17.

69. People v. Smith, No. A139339 (Recorder's Court, Detroit, Mich. Oct. 2,1969); People v. Thompson, No. A 139528 (Recorder's Court, Detroit, Mich. Apr. 2,1968); Letter from L.C. Guinot to Milan C. Miskovsky (Feb. 16, 1968) (available

1752 [Vol. 33:1723

RIOTERS AND JUDGES

The forty-three homicides in the riot ultimately led to only threeconvictions. The prosecutor found justifiable homicide by law en-forcement officers in twenty cases and was unable to find sufficientevidence to issue homicide warrants in seventeen other deaths. Ofthe six homicide warrants that the prosecutor recommended, thejudge dismissed one at the preliminary examination; one resulted ina life sentence for first-degree murder; one resulted in a sentence oftwelve to forty years for second-degree murder; and a fourth resultedin a sentence of five to fifteen years for second-degree murder. 0 Theprosecutor issued the other two homicide warrants to two police of-ficers involved in the riot's most celebrated affair: the July 26 slay-ing of three young blacks in the Algiers Motel. Cahalan recom-mended homicide warrants against patrolmen Ronald August andRobert Paille in two of the deaths. Both confessed to firing the fatalshots, but August claimed self-defense. Paille also would haveclaimed self-defense had his case gone to trial. Judge RobertDeMascio granted the prosecutor's indictment motion as to August,but dismissed the case against Paille after ruling that his confessionwas inadmissible. Cahalan then sought to obtain an indictment ofPaille as a participant in "'a conspiracy to commit a legal act in anillegal manner.'" The prosecutor also appealed DeMascio's rulingregarding Paille, claiming that only a trial judge, not a judge con-ducting a preliminary examination, was authorized to decide on theadmissibility of Paille's confession. 1

Sixty-three days following the preliminary examination in theAlgiers Motel conspiracy case, Judge Frank Schemanske dismissedthe prosecutor's warrant on the ground that the testimony supportingthe conspiracy charge was not credible. Disputing this ruling,Cahalan contended that "'the excessive weight [Schemanske had]placed on the credibility of witnesses completely obscured the pri-mary issue of whether from the entire record of the proceedings suf-

in NACCD Records, Box 22, Lyndon Baines Johnson Library); Letter from Resh toE. Burke Montgomery (Feb. 12, 1968) (available in Detroit Recorder's CourtFiles); Exhibit No. 70, Case No. 55-15-X (available in Records of the United StatesSenate, Record Group 46, National Archives and Records Administration, Wash-ington, D.C.).

70. People v. McCurtis, No. A139885 (Recorder's Court, Detroit, Mich. Dec.2, 1968); People v. Royster, No. A139736 (Recorder's Court, Detroit, Mich. Nov.14, 1969) (order of conviction and sentence); People v. Shugar, No. A139609 (Re-corder's Court, Detroit, Mich. Jan. 28, 1969) (amended order of conviction andsentence); The Detroit News, Nov. 15, 1967; Report of Bernard Dobranski to Rob-ert Conot (undated) (available in NACCD Records, Box 77, Lyndon Baines John-son Library).

71. People v. Paille, No. 139719, People v. August, No. 139718 (Recorder'sCourt, Detroit, Mich. Aug. 14, 1967) (examination) (Algiers Motel File, DetroitPolice Dep't); J. HERSEY, supra note 9, at 297-301, 309-16, 336-37; Detroit FreePress, Aug. 18, 1967; id. Aug. 17, 1967.

19871 1753


ficient facts evidenced commission of the offense charged.'" Manylegal experts were critical of the Schemanske ruling, claiming he hadconducted the preliminary examination as though it were a trial."'He used the case to get how he feels about the riots off hischest,'" one respected attorney declared. The executive secretary ofthe Detroit chapter of the NAACP charged that the judge had usedthe law to "'protect the image'" of the police department.72

The presiding judge of the Recorder's Court granted Cahalan'smotion for a writ of superintending control to reinstate the Paillemurder charge, with directions to the examining magistrate to hearthe excluded evidence and to reconsider the dismissal of the charge.The court of appeals upheld this ruling, but in a four-three decisionon July 11, 1971, the Michigan Supreme Court reversed the lowercourt and, in a "highly unusual" decision, sent the case to theWayne County Circuit Court to rule on the prosecutor's motion. Thecircuit court ordered the Recorder's Court to take additional testi-mony on the case to determine if Paille gave his confession under thethreat of discharge, suspension, or other adverse administrative ac-tion. Visiting Judge George T. Ryan held an evidentiary hearing andruled on August 7, 1972, that Paille had been acting on the "reason-able belief" that he was "under a state of coercion" and that his"damaging admission" was therefore inadmissible under the Garrityrule. Cahalan appealed to the Wayne County Circuit Court, but thecourt denied the appeal, thus ending the matter.7 3

In a second Paille decision handed down a week after the firstdecision, the Michigan Supreme Court denied the prosecutor's mo-tion to reinstate the state conspiracy charge. Affirming theSchemanske ruling, the court held that the examining magistrate"had not only the right but, also, the duty to pass not only on theweight and competency of the evidence but also on the credibility ofthe witnesses."17 4

72. People v. Paille, No. A140012 (Recorder's Court, Detroit, Mich. Dec. 1,1967) (opinion and order) (Algiers Motel File, Detroit Police Dep't); People v.Paille #2, 383 Mich. 621, 626, 178 N.W.2d 465, 467 (1970) (emphasis in original);J. HERSEY, supra note 9, at 386-87; Detroit Daily Press, Dec. 6, 1967.

73. People v. Paille #1, 383 Mich. 605, 178 N.W.2d 469 (1970); Paille, No.139719 (Algiers Motel File, Detroit Police Dep't); August, No. 139718 (AlgiersMotel File, Detroit Police Dep't); People v. Robert Paille, File No. 139718, 139719,opinion by George T. Ryan (Aug. 7, 1972) (Algiers Motel File, Detroit PoliceDep't); J. HERSEY, supra note 9, at 389; Detroit Free Press, Aug. 8, 1972; id. July26, 1967; Notes on Evidentiary Hearing, Robert N. Paille (Feb. 14, 1972) (AlgiersMotel File, Detroit Police Dep't); FBI Document (Aug. 5, 1971) (FBI Records ob-tained under Freedom of Information Act); Letters and enclosed notes from SAC,Detroit to FBI Acting Director (Nov. 10, 1972, Mar. 20, 1973) (FBI Records ob-tained under Freedom of Information Act). For the Garrity rule, see Garrity v. NewJersey, 385 U.S. 493 (1967).

74. Paille #2, 383 Mich. at 621, 178 N.W.2d at 468.

1754 [Vol. 33:1723

RIOTERS AND JUDGES

In the August murder trial, the defense succeeded in moving thetrial from Detroit to Mason, Michigan, because of pretrial publicity,some of it generated by the publication of John Hersey's The AlgiersMotel Incident. Without consulting his Recorder's Court colleagues,presiding Judge Thomas Poindexter assigned the venue decision tovisiting Oakland County Circuit Court Judge William J. Beer, "aman of Poindexter's ideological view." Judge Beer granted the de-fense's motion for a change of venue and then presided at the Masontrial. An all-white jury acquitted August on June 10, 1969, afterBeer, ruling out the possibility of a second-degree murder or man-slaughter verdict, instructed the jurors that they must rule for Au-gust unless they found that he had "'killed with malice and premed-itation.' " Most legal authorities thought that this " 'all or nothing'"charge was "less than correct" but "legal." One prominent Detroitcriminal attorney, however, viewed the charge as "'dead wrong,'"and Cahalan later said that it "just drove [him] crazy. ' 75

Although Cahalan failed in his effort to secure a state trial on aconspiracy charge in the Algiers Motel affair, a federal grand juryindicted August, Paille, David Senak, who was the third police of-ficer involved, and a private guard for conspiring to deny the civilrights of Pollard, Temple, and eight others in the Algiers Motel inci-dent by "inflicting punishment [on them] by injury and death" with-out due process of law. Federal Judge Steven J. Roth granted thedefense's motion for a change of venue, transfeirring the federal con-spiracy trial to Flint. On February 25, 1970, an all-white jury foundthe defendants not guilty of the conspiracy charge.7 1

In the end, no one was convicted for the deaths that had oc-curred in the Algiers Motel. The mothers of Pollard and Templefiled civil suits in federal court and Wayne County Circuit Court,but they withdrew their suits after the City of Detroit, in out-of-court settlements, agreed to pay $62,500 to each family. The Templesuit was not settled until 1976.Y

The Recorder's Court came under severe attack from various

75. J. HERSEY, supra note 9, at 395; Interview with Cahalan, supra note 10,at 28. For various newspaper accounts, see Detroit Free Press, July 20, 1972; Dec.15, 20 1969; June 15, 1969; May 12-June 1, 1969 passim; Feb. 25, 1969; Jan. 30,1969; Dec. 20, 1968; The Detroit News, May 13-June 11, 1969 passim; MichiganChronicle, June 28, 1969; N.Y. Times, June 28, 1968; July 9, 1968; May 13-June11, 1969 passim; May 1, 1970.

76. J. HERSEY, supra note 9, at 389; Doar, Memorandum for the AttorneyGeneral (Sept. 28, 1967) (available in Ramsey Clark Papers, Box 29, LyndonBaines Johnson Library). For various newspaper accounts, see Detroit Free Press,July 26, 1972; Jan. 18-Feb. 26, 1967 passim; The Detroit News, Jan. 21-Feb. 27,1970 passim; N.Y. Times, Mar. 1, 1970; Feb. 25-26, 1970; Feb. 19, 1970; Jan. 28-Feb. 1, 1970; Jan. 21, 1970.

77. The Detroit News, Feb. 12, 1976; Detroit Free Press, Nov. 7, 1972.

17551987]


segments of the legal profession for its behavior in the processing ofriot arrestees. The general complaint was that the court responded tothe "lawlessness" of the riot by "its own lawless activity." Manycritics charged that the riot frightened the court and that in empha-sizing the restoration of law and order it became an "'arm of thelaw enforcement agencies'" rather than a protector of the constitu-tional rights of arrestees. Attorney Henry Cleage told a KernerCommission interviewer that a group of Detroit lawyers had consid-ered filing a law suit against the Recorder's Court judges for con-spiring to deny riot defendants their, rights but that John Doar haddissuaded them from doing so, a contention that Doar denied manyyears later.78

Insofar as the Recorder's Court departed from a position ofneutrality in the riot, its behavior was similar to that of criminalcourts in other riot cities. As Jerome Skolnick pointed out, the crimi-nal courts in these cities had become "instrument[s] of politicalneeds relatively unrestrained by conditions of legality." In other riotcities, as in Detroit, there were "recurring breakdowns in the mecha-nism of processing, prosecuting, and protecting arrested persons. ' 79

The Recorder's Court was not without defenders of its riot be-havior. In its annual report for 1967, the court claimed that mem-bers of the United States Civil Rights Commission who "virtuallylived" with the court for two weeks beginning on July 24 praised theAway it handled riot prisoners and cases. The president of the DetroitBar Association stated on July 28 that the court had been "sympa-thetic to the needs of the prisoners within the limits of the ability soto do." Cahalan appraised the court's conduct as "'very, verygbod'" and insisted hyperbolically that "'never in the history of civ-ilization have the constitutional rights of people engaged in civil dis-

78. 1. BALBUS, supra note 3, at 121; Locke, supra note 49, at 323; DetroitFree Press, Sept. 23, 1967; id. Aug. 8, 1967; id. Aug. 5, 1967; The Detroit News,Aug. 5, 1967; Detroit Free Press, July 30, 1967; Detroit Riot, A Challenge, supranote 22, at 17; E. Mazey, Summary of Detroit Riot Developments (Sept. 23, 1967)(available in Metropolitan Detroit Branch of ACLU Papers, Box 12, Archives ofLabor & Urban Affairs); Metropolitan Detroit Branch ACLU Release (July 27,1967) (available in Metropolitan Detroit Branch ACLU Papers, Box 12, Archivesof Labor & Urban Affairs); Official Transcript of Comm'n of Civil Disorders,supra note 21, at 3804; Letter from John Doar to Sidney Fine (July 16, 1985)(available in author's files); Memorandum from Wilson to Nelson (Brown inter-view), supra note 60; Memorandum from Wilson to Nelson (Cleage interview),supra note 51; Address by Fr. Paul Harbrecht, Conference of Religious & LayLeaders, Wayne State University (Sept. 22-23, 1967) (available in Office of Reli-gious Affairs Papers, Archives of Labor & Urban Affairs, Wayne State University);Address by Sengstock, supra note 21.

79. NACCD REPORT, supra note 3, at 183-84; J.H. SKOLNICK, supra note30, at 239; D.P. Boesel, The Ghetto Riots 1964 to 1968 160 (1972) (PH.d. disserta-tion, Cornell University).

1756 [Vol. 33:1723

RIOTERS AND JUDGES

order been so well protected.'" Seventeen years later he found noreason to alter this judgment, considering the difficult circumstancesthe court faced at the time of the riot. Judge Brennan told a KernerCommission interviewer that the critics of the court "'didn't knowwhat the hell was going on. . . . [T]he thugs, the pimps and thewhores are not going to be objective about the courts. They'll beobjecting and bitching all the time.'" The interviewer thought thatBrennan "exhibited . . . no understanding of why people might becritical of his conduct."80

The Wayne County Juvenile Court, not the Recorder's Court,processed the 703 juveniles arrested during the riot. The JuvenileCourt had begun devising plans for its reaction to a possible riotabout a year before the 1967 disorder. It had decided to keep alljuvenile arrestees in the Wayne County Youth Home and had ar-ranged for the Wayne County General Hospital to feed them. It hadnot, however, anticipated the modifications in its administrative andjudicial procedures that the riot necessitated.81

The bulk of the 703 juveniles apprehended during the riot werecharged with looting or curfew violation. Of the 673 juveniles actu-ally brought to the Youth Home, about 500 had no previous contactwith the Juvenile Court, 100 had such previous contact, and 80 were"active" with the court at the time of their arrest. Since the YouthHome had a capacity of only 160, arrestees had to sleep on the floorin the gymnasium, the auditorium, and other rooms. This compelledJuvenile Court Judge James H. Lincoln to seek additional detentionspace for the juvenile arrestees, just as the police and the sheriff hadto do for adult arrestees. Judge Lincoln arranged through GovernorRomney for the use of the W.J. Maxey Boys Training School inWhitmore Lake, but the court, in the end, did not use the facility.Lincoln was concerned about the security of the Home because hehad received threats from the Black Panthers and other black powergroups that they would blow up the building and firebomb the sur-rounding area. The security provided by sheriff's deputies, para-troopers, and Guardsmen proved, however, to be more thanadequate.

8 2

80. Capability Hearings, supra note 26, at 6291-92; 1967 RECORDER'SCOURT REP., supra note 19, at 4; Detroit Free Press, Oct. 15, 1967; Memorandumfrom Dobranski to Wilson (Cahalan interview), supra note 15; Memorandum fromDobranski & Ursu to Wilson (Brennan interview), supra note 20; Interview withCahalan, supra note 10, at 38-39. But cf N.Y. Times, Sept. 22, 1968.

81. J. LINCOLN, THE ANATOMY OF A RIOT 21 (1968); Capture & Record,supra note 41; James Gaither for the President (May 9, 1967) (available in Box 29,WE9, White House Central Files, Lyndon Baines Johnson Library); Interview withJames H. Lincoln 15-17 (June 14, 1984) (available in Michigan HistoricalCollections).

82. J. LINCOLN, supra note 81, at 15-16; R. Komisaruk & C. Pierson, Chil-

1987] 1757


Like the Recorder's Court judges, Lincoln declared at the outsetof the riot that he was not going to release any juvenile arresteesback to the streets to sustain the disorder. Deciding on bonds be-tween $5,000 and $10,000 for the youthful arrestees, he proudly in-formed Governor Romney on July 25 that he had not released "asingle juvenile . . . back into the community to feed the riot." Thejudge later explained that he had initially decided on high bonds be-cause he had expected arrestees to be arsonists or snipers rather than"a bunch of looters and curfew violators out for a good time like onHalloween night." His talk of holding arrestees who could not meettheir bonds for two to three months while they prepared for theirtrials proved to be just talk. "It was like I got all lathered up toshave," he remarked, "and then didn't shave." Lincoln also discov-ered that many parents, if not rioting themselves, were content tohave their children remain safely in custody in the Youth Homewhile the riot lasted-"they wanted us to be babysitters for them,"the judge recalled.83

The Juvenile Court began the preliminary hearings of arresteeson July 24 to determine if the particular arrest was justified and ifsufficient evidence existed to justify detention and bail. Three refer-ees conducted the hearings, and, because parents and guardians werenot present as required by law, the decisions were subject to review.Although the police requested the issuance of 461 delinquency peti-tions, evidence to sustain convictions was lacking in all but a fewcases. Judge Lincoln, however, thought that "probable cause" ex-isted in almost all cases and that the arrests were justified.84

The Juvenile Court began releasing the youthful arrestees onJuly 27. Unlike the Recorder's Court, the Juvenile Court expeditedthe action by reducing the usual amount of paper work for process-ing juveniles and by devising a reconizance bond form that requiredthe parents to sign and acknowledge an indebtedness of $1,000 tothe state if the juvenile did not appear in Juvenile Court when re-quired. Although the court's treatment of juvenile arrestees did notentirely conform to the United States Supreme Court's Gault stan-dard, the court largely escaped the criticism that the Recorder'sCourt received for its treatment of adult arrestees.85

dren of the Ghetto, in RIOT IN THE CITIES 121 (R.A. Chikota & M.C. Moran eds.1967); Detroit Free Press, July 26, 1967; Letter from James H. Lincoln to GovernorGeorge Romney (July 25, 1967) (available in Romney Papers, Box 345, MichiganHistorical Collections); Interview with Lincoln, supra note 81, at 32-35.

83. J. LINCOLN, supra note 81, at 17; Detroit Free Press, July 25-26, 1967;The Detroit News, July 25, 1967; Letter from Lincoln to Romney, supra note 82;Interview with Lincoln, supra note 81, at 19-23.

84. J. LINCOLN, supra note 81, at 127, 131-34, 138; Detroit Free Press, July26, 1967; Capture & Record, supra note 41.

85. In re Gault, 387 U.S. 1 (1967). The Supreme Court specified that juve-

1758 [Vol. 33:1723

RIOTERS AND JUDGES

Since the jurisdiction of the Wayne County Circuit Courtwithin the City of Detroit extended only to civil cases, the circuitcourt did not experience the problems that the large number of adultand juvenile riot arrestees caused for the Recorder's Court and Juve-nile Court. When the Detroit police, however, began conducting un-reasonable searches and seizures during the riot in an effort to re-cover looted merchandise, the NLSC, later joined by the DetroitACLU, initiated a suit in circuit court to enjoin the police depart-ment from searching for stolen property without a search warrantand illegally removing personal property in the process. In refusingto grant the injunction, Judge Carl Weideman declared, "'You'reasking me to handcuff the police. I am not about to do that.'" Theway the judge ridiculed counsel and the attitude about the case thathe evidenced "shocked" the legal director of the Michigan ACLU.On August 4, the NLSC and ACLU withdrew their suit afterCavanagh ordered the police to obtain search warrants if they couldnot secure the written permission of residents to conduct a search.8 6

The administration of criminal justice during the 1967 riot notonly helped, to some degree, to sustain the riot but also reinforcedblack attitudes concerning the nature of law and law enforcement inDetroit. The riot behavior of the Recorder's Court, according to Pro-fessor Sengstock, flashed "a green light to the police" that they neednot be overly concerned about the constitutional rights of people inthe riot areas of the city. As Cyrus Vance viewed it, the operation ofthe criminal justice system during the disorder served "to pump upthe people's emotions[,] which in turn tended to keep the momentumof the riot going."'87 The prison and judicial treatment of thepredominantly black arrestees embittered the arrestees themselves,their relatives and friends, and many others in the black community.After their release, arrestees displayed "an extremely negative, hos-tile attitude" toward the Recorder's Court and the criminal justicesystem in general. As one arrestee declared, "after I came back,slowly but surely I got madder and madder. . . . [T]hey kept themthere so long that everybody just said, 'we're going to do somethingwhen we get out of here.'" A post-riot survey of blacks in theTwelfth Street area, where the riot centered, revealed that eighty-seven percent of them did not think that the laws were "'fair to all

nile defendants were to be accorded virtually the same rights as adult defendants. J.LINCOLN, supra note 81, at 149, 154-56; Interview with Lincoln, supra note 81, at17-19, 21; Interview with Reosti, supra note 30.

86. Michigan Chronicle, Aug. 12, 1967; Detroit Free Press, Aug. 8, 1967; id.Aug. 6, 1967; The Detroit News, Aug. 4, 1967; Detroit Free Press, Aug. 2, 1967;NLSC Newsletter, supra note 34.

87. Deposition of Colista, supra note 30; Interview with Cyrus Vance 24(March 14, 1985) (available in Michigan Historical Collections); Address by Seng-stock, supra note 21.

1987] 1759


people,'" and ninety-two percent did not believe that the police en-forced the laws "'equally.'" In the post-riot Kerner Commissionsurvey of racial attitudes in fifteen cities, 18.6 percent of Detroitblack respondents thought that Recorder's Court judges were harderon blacks than whites, as compared to two percent who thought thereverse.

88

The Interfaith Emergency Council, which had been created dur-ing the riot, established a justice office to aid in arranging bail forriot prisoners. In some cases, church property was used as securityfor bail bonds. The justice office also recruited, trained, and super-vised volunteers to observe and report on Recorder's Court opera-tions. It also coordinated the assignment of clergymen to inner-cityprecincts to assist prisoners and comfort their families. In March1968, the Equal Justice Council took over the court watching func-tion, using three to four hundred whites and blacks to observe courtproceedings. The Council reported in April 1969 that court sessionswere still being conducted in an "'atmosphere of confusion,'" thejudges were "'unfair . . .arrogant and disrespectful,'" and thecourt often set higher bonds for black defendants than white defend-ants. Recorder's Court sources responded to this criticism by notingthat the court watchers that the Council had been using had scanttraining for their assignment.8 9

Following the riot, the Recorder's Court, the police department,the prosecutor, the Juvenile Court, the Michigan Supreme Court,and the Detroit city government all sought to be better prepared todeal with the consequences for the administration of justice shouldDetroit once again have to cope with a major riot. In devising theirriot plans, the agencies concerned sought to apply what they re-garded as the lessons to be learned from the 1967 riot. The Re-corder's Court transferred its warrant drafting function to the prose-cutor's office, thus eliminating what had been a major bottleneck inthe court's operations during the riot. It cooperated with the city'snew defender program in planning to supplement its customarymethod of assigning counsel, and it agreed to work with the NLSCin employing a pretrial release program rather than resorting tocommercial bail bondsmen. Supplementing the actions of the Re-

88. Interuniversity Consortium for Social and Political Research, Detroit datafor A. Campbell & H. Schuman, Racial Attitudes in Fifteen American Cities, inSUPPLEMENTAL STUDIES FOR THE NATIONAL ADVISORY COMMISSION ON CIVIL Dis-ORDERS (Government Printing Office ed. 1968); Crockett, Recorder's Court, supranote 22, at 359; Hahn, Cop$ and Rioters: Ghetto Perceptions of Social Conflict andControl, 13 Am. BEHAVIORAL SC. 765 (1970); Comment, supra note 7, at 1573-74,1628-30; Michigan Chronicle, Mar. 11, 1968; Detroit Riot, A Challenge, supra note22, at 40-41; Interview of Caplan with Scott, supra note 43, at 25-26.

89. Detroit Free Press, Apr. 25, 1969; Michigan Chronicle, Sept. 30, 1967;The Detroit News, Sept. 20, 1967.

1760 [Vol. 33:1723

RIOTERS AND JUDGES

corder's Court, the Legal Aid and Defender Association developed acomprehensive plan for the participation of volunteer attorneys atevery stage of the criminal justice process. Both the Criminal LawCommittee of the Detroit Bar Association and the Civil LibertiesCommittee of the Michigan State Bar Association then adopted theplan.90

The riot plan of the Detroit Police Department provided for ar-resting officers to use a checklist to report details of arrests to expe-dite the processing of prisoners. The department arranged with theprosecutor's office for a representative of that office to be present atpolice command posts during a riot to determine the proper chargeand to advise police regarding the release of arrestees against whomthe prosecutor could not sustain charges. In the event of a riot, asenior police staff officer was to command a Prisoner Control Sec-tion that featured a computerized prisoner information center whichwould determine who had been arrested and where they were beingdetained. The police department prepared to expand its Identifica-tion Bureau so that it could process 1,000 prints per day in a riotrather than the usual 200.91

The prosecutor's office devised a "'riot emergency plan'" thatcalled for a "'riot executive committee'" of senior prosecutors tocoordinate prosecutorial activities. The plan provided for a continu-ous check of identifications during an emergency; arrest reports,complaints, and warrants were to be combined into a standard formfor "'high volume charges'" such as EW/OB and curfew; and pros-ecutors were to reduce felony charges to misdemeanors " 'in propercases.'" Eventually, the prosecutor's office devised an automatedmethod of preparing pleadings.92

Judge Lincoln devised detailed juvenile court procedures to befollowed in the event of a riot with regard to intake, administrativeproblems, space needs, security, Youth Home management, and thehandling of judicial problems. The Michigan Supreme Court, in the

90. 1. BALBUS, supra note 3, at 149-50; 1968 ANN. REP. OF THE RECORDER'SCOURT OF THE CITY OF DETROIT 2; The Detroit News, Oct. 15, 1967; Letter fromMayor Cavanagh to Judges (Oct. 24, 1967) (available in Cavanagh Papers, Box346, Archives of Labor & Urban Affairs, Wayne State University).

91. 1. BALBUS, supra note 3, at 148; The Detroit News, Oct. 15, 1967; Reportof Mayor's Committee on the Administration of Justice, Subcommittee on Arrest,Booking and Screening (Aug. 20, 1968) (available in Cavanagh Papers, Box 510);Letter of Ray Girardian to Detroit Common Council (Feb. 1968) (available inCavanagh Papers, Box 409, Archives of Labor & Urban Affairs, Wayne State Uni-versity). The Wayne County Sheriff also prepared a list of facilities where prisonerscould be detained.

92. 1. BALBUS, supra note 3, at 148-49; Letter from William Cahalan to Sid-ney Fine (June 30, 1986) (available in author's files); Interview of Cahalan, supranote 10, at 35-36.

1987] 1761


summer of 1968, adopted "a resolution of policy" regarding thetreatment of persons accused of crime and disorder that called forthe chief justice or a judicial officer he designated to "direct andcoordinate the work of all affected courts" for the duration of thedisorder and to do what was necessary "to assure the orderly andefficient administration of justice." The court administrator and hisstaff were empowered to assign and transfer judges of any court inthe state to "emergency judicial duties" and were to employ suchlegal assistance and clerical help as necessary.93

Mayor Cavanagh established the Mayor's Committee on theAdministration of Justice during Civil Disorders to coordinate theriot plans of the police, the prosecutor, the courts, the bar, and theLegal Aid and Defender Association. The committee held four ple-nary meetings, the first on June 24, 1968, the last on June 27, 1969.Very much as the Kerner Commission had recommended, the com-mittee was c6ncerned with such matters as providing informationabout arrestees; community relations; mobilization of legal person-nel; arrest, booking, and screening procedures; bail procedures (suchas releasing misdemeanants at the precincts on interim personalbonds); detention and transportation of large numbers of prisoners;clarification of existing legislation applicable to civil disorders; andcourt administration and policy. Insofar as the concerns of the com-mittee and its subcommittees pertained to court policy, their deliber-ations were essentially unproductive. This was not only because theMichigan Supreme Court had final authority regarding the emer-gency procedures of lower courts but also because Chief JusticeThomas Brennan had made it clear that the supreme court wouldorder "a highly restrictive bond policy" in a future disorder.9 4

93. J. LINCOLN, supra note 81, at 21-47 passim; Michigan's Supreme CourtAdopts Resolution of Policy on Times of Civil Disorder, 47 MICH. ST. B.J., Aug.1968, at 31.

94. 1. BALBUS, supra note 3, at 152-54; NACCD REPORT, supra note 3, at194-95; Letter from Jerome P. Cavanagh to T. E. Brennan (May 27, 1969) (availa-ble in Maurice Kelman's Papers in Professor Kelman's possession, Wayne StateUniversity Law School); Letter and enclosed rough draft from Jerome P. Cavanaghto Simmons (June 18, 1968) (available in Cavanagh Papers, Box 427, Archives ofLabor & Urban Affairs, Wayne State University); Letters of Maurice Kelman toJerome P. Cavanagh (Aug. 19, 1968, May 26, 1969) (available in Kelman Papers,Maurice Kelman, Wayne State University Law School); letter of Maurice Kelmanto Sidney Fine (June 24, 1986) (available in author's files); J. Cavanagh, Remarksat the First Meeting of the Mayor's Committee on the Administration of JusticeDuring Civil Disorders (June 24, 1968) (available in Cavanagh Paper, Box 465,Archives of Labor & Urban Affairs); J. Cavanagh, Outline of Remarks at the Sec-ond Meeting of the Mayor's Committee on the Administration of Justice DuringCivil Disorders (July 22, 1968) (available in Kelman Papers, Maurice Kelman,Wayne State University Law School); J. Cavanagh, Remarks at the Third Meetingof the Mayor's Committee on the Administration of Justice During Civil Disorders

1762 [Vol. 33:1723

RIOTERS AND JUDGES

Detroit's elaborate planning for another major riot proved to belargely academic. Although the city experienced a minor disturbancefollowing the assassination of Martin Luther King on April 4, 1968,Detroit has not since 1967 had to confront the enormous problems inthe administration of the criminal justice system that was one of themajor consequences of the great riot that began on July 23 of thatyear.

(Aug. 20, 1968) (available in Kelman Papers, Maurice Kelman, Wayne State Uni-versity Law School); J. Cavanagh, Remarks at the Fourth Meeting of the Mayor'sCommittee on the Administration of Justice During Civil Disorders (June 27, 1969)(available in Kelman Papers, Maurice Kelman, Wayne State University LawSchool).

1987] 1763

fine - rioters and judges

Documents

adult detroit arrestees

detroit riot of1967

watts arrestees

detroit disturbance

juvenile arrestees

watts riot

percent figure

total number of arrestees