POLLAK, WALTER HEILPRIN

Walter Heilprin Pollak was a lawyer and civil libertarian who is credited with convincing the U.S. Supreme Court to first adopt the incorporation doctrine, which the Court has used to extend most of the provisions of the bill of rights to limit actions by state and local governments. Pollak is also remembered for his arguments for the defense in powell v. alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), which extended the right to counsel in death penalty cases to state criminal trials.

Pollak was born on June 4, 1887, in Summit, New Jersey. He graduated from Harvard University in 1907 and from Harvard Law School in 1910. He joined the prominent New York City law firm of Sullivan and Cromwell, but in 1912 he left for the smaller firm of Simpson, Warren, and Cardozo. Pollak worked with benjamin n. cardozo before Cardozo left in 1914 to become a New York Court of Appeals judge. Following Cardozo's departure and the retirement of another partner, Pollak became partner in the firm of Englehard and Pollak.

Pollak was an ardent supporter of freedom of speech and the Bill of Rights. He appealed to the U.S. Supreme Court Benjamin Gitlow's conviction under New York's Criminal Anarchy Act (N.Y. Penal Law §§ 160–161 [repealed 1967]) for "advocacy of criminal anarchy," which was defined as the advocacy of "the duty, necessity or propriety of overthrowing or overturning organized government by force or violence" (gitlow v. new york, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 [1925]). Gitlow was convicted and sentenced to a prison term of five to ten years for distributing a left-wing pamphlet.

"Man is a free agent to use his tongue and pen, as he may use his brain and body generally, for his own benefit or harm in the conduct of his private affairs."
—Walter H. Pollak

Pollak argued that the First Amendment's guarantees of freedom of speech and freedom of the press were applicable to the states because the due process clause of the fourteenth amendment protects "liberty" from abridgement by the states. By incorporating the first amendment provisions into the Fourteenth

Amendment, states could not restrain the free speech rights of persons such as Gitlow.

Though the Court did not agree with Pollak that the New York law was unconstitutional, it did adopt his incorporation argument, holding that freedom of speech and the press "are among the most fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."

In Powell v. Alabama, Pollak returned to the Supreme Court to argue on behalf of the "Scottsboro boys," a group of young African Americans sentenced to death for an alleged sexual assault on two white women. The defendants had not been provided effective legal counsel, and the trial had been a sham, evoking a public outcry in the North. Pollak convinced the Court that the defendants had been denied due process of law in violation of the Fourteenth Amendment.

Pollak also served on the staff of the National Commission of Law Observance and Law Enforcement, which came to be known as the wickersham commission. In 1931 the commission issued its fourteen-volume report, which revealed disturbing features of the U.S. criminal justice system. It brought to public attention the use of "third-degree" interrogation methods against criminal suspects and the need for more professional police forces. Pollak helped write the report on the third degree and a staff report that demonstrated that prosecutors in a particular case had condoned and probably encouraged the giving of false testimony in convicting the defendant. The Supreme Court later agreed with Pollak's conclusion on this case. In Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935), the Court ruled that a state has denied due process if it deceives the trial judge and jury by presenting evidence known to be perjured.

Pollak died on October 2, 1940, in New York City.

further readings

Pollak, Louis H. 1991. "Thomas I. Emerson: Pillar of the Bill of Rights." Yale Law Journal 101 (November).

——. 1982. "Advocating Civil Liberties: A Young Lawyer Before the Old Court." Harvard Civil Rights–Civil Liberties Law Review 17 (spring).

Pollak, Walter Heilprin (b. Summit, N.J., 4 June 1887; d. New York, N.Y., 2 Oct. 1940), lawyer and civil libertarian. Pollak used persuasive Supreme Court briefs to lead the movement to establish uniform national constitutional standards in the free expression and criminal areas by “incorporating” federal Bill of Rights protections against the states (see Incorporation Doctrine). Starting with the 1925 Gitlow case, the Supreme Court embraced this process as a proper interpretation of the Fourteenth Amendment, agreeing that freedom of speech and press are part of the “liberty” that the Fourteenth Amendment forbids the states to take away arbitrarily. This action laid the foundation for subsequent application of most of the Bill of Rights to the states. While Pollak did not succeed in persuading the Court to void the restrictive New York law under which Gitlow was convicted, or the California criminal syndicalism law in the 1927 Whitney case, his “incorporation” principle subsequently served to upset the California red flag law and the Minnesota gag law in 1931 and Mayor Frank Hague's suppression of open‐air meetings in Jersey City in 1939.

Pollak was also committed to fair procedure, reflected in his work on the Wickersham Commission investigating lawless methods of law enforcement and prosecutions. He persuaded the Court to quash two separate death sentences upon the “Scottsboro boys,” first because they were not fairly represented by counsel at their initial trial (Powell v. Alabama, 1932), and later because blacks had been excluded from the jury list (Norris v. Alabama, 1935). His work has been called “an awesome personal achievement” and a monument in the history of civil liberties.

Paul L. Murphy