N.J. Constitutional Convention: Vol. 4, Page 479

Thursday, July 24, 1947 (Afternoon session)

that the provisions so far as the judiciary was concerned would all be written the way it was then established. That was attributed - I don't know how true it is - it was attributed, however, to an official. I know that that was discouraging to some of our committee members and I know that that's the reason they are not here, and I am only offering that as an apologetic note.

MR. BROGAN: I am very glad it didn't discourage you.

JUDGE MADDEN: Well, we are of the more tenacious type, Justice.

VICE-CHAIRMAN: Any questions?

MR. WALTER G. WINNE: I would like to say something. In the first place, don't get the idea there is anything closed. There is nothing closed. There is nothing that can't be opened today, or tomorrow, or anytime. No member of any committee has closed his mind, so far as I can see, and no matter what the report, I am open to voting anyway on anything I please.

JUDGE MADDEN: I will say we are delighted to hear that. I know our members will be delighted to have us bring that home. We have ten with us on this appellate thing. I wonder if we can't get the other two?

MR. WINNE: Judge Madden, do you think there are some types of cases which are so important, such as capital cases, that there should be two appeals? Wouldn't it answer the questions in your mind and in those of the other gentlemen on the committee completely, if you provided in such cases that they should have one appeal to the highest court, so that it ended up with the best that you got?

JUDGE MADDEN: That was given to me, Prosecutor, and the best answer I can give you is this. I will give you a recent case. The only persons involved were judges, all men of high intelligence and integrity, and it wasn't any spur-of-the-moment proposition. It was cold, honest, deliberate thinking on the rights of a judge. Judge Smith went to Scranton to dispose of some ugly messes up there. A man was convicted. He applied for a new trial and urged some 54 points for a new trial. Judge Smith considered it for awhile, and turned him down. He then appealed to the Circuit Court of Appeals and the conviction was affirmed. His application to the Supreme Court on certiorari was denied. The mandate came down and the man went to jail. All this has taken a year. Judge Smith, coldly and deliberately thinking over his legal rights, determined that he should give the man a new trial and, secondly, that he had the power to give the man a new trial, and he entered an order releasing the man from jail on bail and gave him a new trail. The Government sought and obtained from the Third Circuit Court of Appeals a hearing for mandamus to put the man back in jail and to vacate the order of Judge Smith. The Circuit Court of Appeals

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