O'Loughlin v. People

Mr. Justice Burke

dissenting.

Convinced, as I am, that a question is here involved more vital to this state than the final outcome of a single case, and more momentous to its citizens than the guilt of an individual, I feel constrained to dissent and state my reasons therefor. In examining that question two fundamental facts must be borne in mind:

First, that all evidence of defendant’s guilt is circumstantial. Given all material facts, with their relationship correctly deduced, this is not only the strongest evidence known, it is infallible. Its inherent weakness, in many cases, is its incompleteness and the difficulty of its applicability. “Circumstantial evidence” might be said to be a witness who knows everything and who can not lie, but who speaks only when interrogated and then in an alien tongue. If every essential question has been asked, and every answer clearly comprehended, the verdict must be truth itself. But so difficult sometimes is the task of interpretation that jurors distracted by irrelevant issues must be almost superhuman to escape error.

Second, no one can read this record and say he is satisfied with it. This is a murder without a motive. The imagination which can supply one for defendant can, with equal facility, supply.one for other actors in the drama. Counsel for Mrs. O’Loughlin said he would account for her whereabouts during all the time when the crime must have been committed. He failed to do this, since his client did not take the stand, and fancy finds the reason in guilt. But fancy can find other reasons equally potent to close the mouth of the accused.

I do not predicate what I have to say here upon any presumption that there is not, in this record, evidence to *391 support the verdict. I say only that a trifling error might have tipped the scales, hence we must be sure that the forms of law were followed, and that, in looking at the facts, the jurors were permitted to do so with open minds and eyes undimmed by the dust of prejudice. "Were they? At the very threshold of the trial they heard from the lips of one whom they had every rig’ht to credit with knowledge of the law, acquaintance with the facts, and an integrity which made falsehood impossible—their own official, the public prosecutor—that all doubt of the identity of the murderer had been settled by defendant’s confession. His statement was not merely an expression of hope, it was the affirmance of an accomplished; fact. There was about it no pretense, no uncertainty, no lingering doubt. It was positive and unequivocal. When he started to detail certain purported admissions of clefend1 ant an objection was made and overruled. He thereafter-closed his opening- statement thus: “We expect to show you, after questioning for a considerable length of time at the City Hall, Mrs. O’Loughlin admitted she committed the act. If we show these facts as outlined, gentlemen, we expect a conviction at your hands.

“Mr. Keating [For the defense] : With the Court’s permission I will reserve my statement until the close of the prosecution’s case.”

So the first witness was called and the jurors, with that undisputed assertion of defendant’s admission of guilt ringing in their ears and furnishing the key for the interpretation of doubtful and inarticulate facts, entered upon their duties, and nothing thereafter happened during the entire course of the trial to remove the conviction which that statement must have carried. The state produced no such evidence. That failure alone might have led to the conclusion that no confession had been made, but it was not permitted to stand alone. The entire matter was gone into in the absence of the jury and the court correctly held that whatever was extorted from the defendant, during five days of her incarceration incom *392 mullicado, was secured under duress, hence involuntary and inadmissible. Thereafter, with the jury present, the following occurred:

“Mr. Wettengel [District Attorney] : If the Court please, I believe that the State would be entitled to have the jury instructed as to the reason for the delay, and your Honor’s rulings and statements, in the presence of the jury, concerning' certain things being’ detailed. I except to your Honor’s ruling on the point which has just been decided; but I think the jury are entitled to know that your Honor has made a ruling to that effect, that the statements are excluded. I do not know as you need to assign a reason.

“Mr. Keating [For the defense] : We want the jury instructed, if your Honor please, as to why this evidence is not g’oing* to come in before them.

‘ ‘ The Court: I am not so sure about that. I am not sure that they have anything to do with what is excluded, even though you both agree on it. ” * * *

“The Court: Well, at the request of both of you, I will g*o this far:—

“Mr. Keating: If the Court please, Mr. Wettengel, I believe, is admitting that he cannot prove what he said in his opening* statement,—

“The Court: Let us not take that up now. Gentlemen of the jury, there was a question that was to be presented to you, as to the alleged admissions or confessions, or something of that sort, that may or may not have been given by the defendant at the City Hall, to the police department. The defendant has objected to any statement of that kind, on the ground that any statements that were caused to be made, were made through a form of duress, * * *. For the past twenty-four hours, the Court has taken that testimony outside of your presence, and the Court has decided that that testimony should not be permitted to be given to the jury. * * * The main reason that the Court excluded it is because she was kept up unreasonable hours in the night to *393 be quizzed. Por that reason, you gentlemen will not have that part of the testimony which was in dispute.”

Thereupon the taking’ of testimony before the jury was resumed, and among the instructions finally given was No. 15, which reads in part: “In determining the facts you should consider only the evidence given upon trial. Evidence offered a.t the trial and rejected by the Court * * * should not be considered by you. The opening statements and arguments of counsel * * * are not evidence. The arguments, statements and objections made by counsel to the Court or to each other, and the rulings and orders made by the Court, and the remarks made by the Court during* the trial and not directed to yon should not be considered by you in arriving at your verdict.”

Thus the jurors not only entered upon the trial with the definite information that this defendant had confessed, but they were told that it took the court twenty-four hours to hear the evidence of that confession, and advised that this was finally withheld from them, at her request and over the protest of the district attorney who had asserted that he had it and would produce it, and that it was so withheld for “the main reason” that “she was kept up unreasonable hours in the night to be quizzed. ’ ’ The natural reaction of ordinarily intelligent and honest jurors, under such circumstances, would be the conviction that the very gist of the people’s case had been kept from them through a trivial technicality behind which a confessed murderess sought immunity. It is doubtful if the most conscientious and strenuous efforts on their part to follow literally the quoted portion of the court’s Instruction No. 15 would enable them to free their minds of that conviction, or remove its imprint from their verdict. But whether all this constitutes error we are not even called upon to determine. A'wide latitude must be, and is, allowed counsel for the people in outlining to a jury what he thinks he will be able to produce. He is not infrequently disappointed in his expectations, sometimes because witnesses fail him, and *394 sometimes because the court rules against him on a question of law concerning which he had good reason to believe he was in the right. The things that are required of him are a reasonable knowledge of the law, reasonable grounds for the view he takes- of it, a reasonable preparation of his case, and a reasonable belief that he will be able to produce what he says he will produce.Questionable therefore as this record thus far is I pass to the vital inquiry: Had this defendant confessed, and had the district attorney reasonable grounds for believing that her confession was admissible %

1. In the hearing- before the court the chief of police, Captain Clark, several other officers, one of the jail matrons, and defendant herself, were examined. Every detail of the prisoner’s conduct, questioning and treatment during the period in dispute was gone into. Neither here nor elsewhere in this record is- any evidence of a confession to be found, and it is repeatedly denied. The nearest approach to it is the testimony of Chief Reed that she wrote on a piece of paper and delivered to him this statement: ££ Take your circumstantial evidence and let it go at that.”

Neither is there evidence of statements or conduct which can reasonably be construed into a confession of guilt, nor 'even an admission of guilty knowledge. I can not, however, assume that the alleged confession was but a figment of the imagination. I therefore conclude that the construction put by the district attorney upon all defendant’s statements and conduct, as fitted by him into facts established, was that they were inconsistent with innocence, hence equivalent to admissions of guilt. On that assumption the question arises: Was there reasonable ground for believing evidence of such statements and conduct admissible1? That question can only be answered by an examination of the circumstances under which the so-called admissions or confessions were made and the means of their procurement.

It was charged that the murder was committed October *395 14. The information was filed October 24, and defendant arraigned the following day. On October 17th she was taken by the officers from her home to the City Hall, interrogated at length, and returned in a police car and with a police escort. October 19, Sunday, she was first technically placed under arrest, and incarcerated. She was in the hands of the police and the district attorney until the late afternoon of Thursday, October 23, when her counsel, under a court order, first succeeded in reaching and advising her. The occurrences, in question now, transpired while she was in company of the officers on the 17th, and from the time she was again taken into custody on the 19th until counsel reached her on the 23rd. Her own story of her treatment is so shocking as to be unbelievable but for the fact that its outlines are admitted and it bears much internal evidence of truth. But, considering its source, and the further fact that, if true, some of the worst of it might have been unknown to the prosecutor, I merely sketch the story as revealed by the people’s witnesses.

Defendant was taken to the station about 3 p. m. on the 17th, questioned for approximately three hours, and returned to her home. She was broug’ht back under arrest on Sunday the 19th about 2 p. m. and examined for two hours, and returned to her cell. She was called back for further examination at 11 that night and the investigation continued until 2 the next' morning. On Monday the 20th her counsel made a futile attempt to reach her but was denied an interview, and she was again questioned from 8 p. m. until 11 p. m. On the 21st her counsel again endeavored to see her and was. refused permission, for the reason, as given by the officers on the stand, that he would advise her not to talk and they did not wish her to know she could refuse. About 2 p. m. this day she was taken to the General Hospital and, by surprise, to a mortuary where the body of the murdered girl lay. She was accompanied by a police captain, two detectives and the district attorney. The body and the *396 girl’s clothing- were dramatically exhibited to her. She was told this was the last time she would see the g-irl and such demands as the following- were made: “Why did you put this little girl in the lake”; “If you have a soul and a conscience tell us who you are shielding-. ’ ’ • After strenuous denials of guilt, or guilty knowledge, she asked to be permitted to kneel beside the coffin and pray. This she did. She was returned to jail about 5 p. m. and again examined from 8:40 p. m. to 11:30 p. m. On the afternoon of the 22nd her counsel applied for a court order permitting- him to see her. That application was taken under advisement. At 9 p. m. on the same day she was broug*ht back to the Captain’s office and kept waiting outside until 10. Beginning at that hour she was grilled until 4:20 in the morning. In the beginning the Captain said to her, “One of us is going to break and it’s going to be you.” At another time he said, “You know I’d hate to crack your neck if you are innocent but circumstances are against you. Tell me, did you-do it alone?” At the close of the session defendant was helped out of the- office. On the following day her counsel’s application to see her was argued and.again taken under advisement. Thereupon an application was made to this court for similar relief, but about 3 p. m., and before action here, the order of the district judge was issued, and armed with it counsel reached his client, interrupting another inquisition which was then in session. In resisting the issuance of the order on the 23rd the prosecutor gave the court as one of the reasons for his opposition that if counsel was permitted to see his client he would advise her not to talk. On the issuance of the order her counsel was promised that on that night she would be permitted to rest. Nevertheless- she was again called at 9 p. m. and examined until 2 a. m. During- this time she declined to talk about herself “on advice of counsel.”

During these several examinations there was repeated talk of “cracking her neck.” We find such questions as these admitted: “Frank helped you didn’t he?” “Why *397 hold out if Prank helped you do it?” Defendant’s condition is partially disclosed by the Chief’s admission that at one time “she was hysterical, extremely hysterical,” and by such of her admitted answers as the following— “When are you going to let me sleep?” “Get Prank, test his sanity, test mine, he is crazy, I am crazy, my God we must both be crazy,” and “Take me out and hang me.” If there be a lingering' doubt of the purpose of this- inquisition, or the probable persistency of it, these are settled by the statement of one of the officers that its purpose was to get a confession and that if a court order had not stopped them they would (at the time of the trial) be grilling her yet.

The full force of the foregoing will yet be missed unless it be further borne in mind that when defendant was broug'ht to the jail on Sunday the 19th her condition of health was such that absolute cleanliness was indispensable to decency, and the withholding of certain mechanical appliances requested, a positive menace. Notwithstanding which the latter were unreasonably delayed and she was permitted nothing resembling a bath until 2 a. m. on Wednesday. Por the first two days she ate practically nothing, her quarters were vermin infested, there was a toilet within a few feet of her, the rooms in which she was forced to sit were at times smoke filled, and for a portion of the time a violent and noisy insane woman was confined next to her. During* some of the sessions her interrogators worked in relays, and during most of them the district attorney was present a part of the time and participating.

I submit that no admission or confession, wrung* from an accused person under similar circumstances, have ever been permitted to go to a jury in any English speaking country within the memory of any man now living, and no public prosecutor could have the slightest reason to believe that such evidence was admissible. Hence when the district attorney said in his opening statement that he would produce it, he made a promise without justifi *398 cation and led the jury to believe that a confession existed which did not exist, and thus prejudiced their minds and influenced the whole course of their deliberations with the conviction that a trivial technicality had kept from them the vital and undisputed fact.

' At the time of these occurrences defendant was merely held for safekeeping. No information had been filed against her. She was denied the first and most indispensable right of every person so incarcerated, the benefit of counsel. Her treatment was that of one whose guilt was beyond question and whose conviction only awaited an admission to be extorted by any conceivable means short of actual physical violence. And yet, even after charge and arraignment, and upon final trial, the jurors were to be solemnly told that she was presumed to be innocent until proven guilty beyond a reasonable doubt, were required to take an oath to so hold her, and expected in all seriousness to abide by that oath.

If the opening statement of the district attorney be given the approval accorded it in the court’s opinion, if the attempted extortion of a confession of guilt from this defendant be thus sanctioned, if the denial to her of benefit of counsel by those sworn to enforce the law be thus condoned, other and even more gross instances of the violation of fundamental rights may be expected, which drastic legislation alone can obviate. We should not forget that if the guilty may be so treated with impunity the last shield of the innocent is shattered.

Not an authority cited in the main opinion touches the point I make. The statements in the Henwood, Wilder, Weiss and King cases dealt with matters occurring during the taking of testimony, or during final argument, ordinary blunders occurring in the heat of trial, and the evidence referred to in counsel’s opening statement in the Mitsunaga case was actually and properly admitted. Neither in these, nor in any case called to the court’s attention, or known to me, has a bald assertion of confession of guilt, or the existence of positive evidence of *399 guilt, made in an opening statement, which assertions were untrue or which evidence counsel had no reason to believe existed, or if existing to believe admissible, ever been approved by a court of last resort.

“Counsel has no right in his opening statement, to rehearse before the jury facts which he is not in a condition to prove. It is the duty of the judge to see that this rule is not overstepped, and therefore he has a right to ask the counsel if he means to prove what he has stated. ’ ’ Thompson on Trials vol. 1, §263. “It is equally the duty of the trial court to restrain every effort on the part of counsel, in their statements to the jury, to introduce matters which are foreign to the issues, and especially matters which have a tendency to excite the prejudice of the jury.” Id. §264. “Where counsel have overstepped the bounds of the preceding rule, it is the plain duty of the judge, * * * to reprove the practice in the hearing of the jury, and afterwards, in instructing the jury, to-admonish them to dismiss from their minds the statements thus made; though where the privilege of advocacy in opening the case has been greatly abused in this regard, such an instruction may not be sufficient to cure the irregularity, but it will be ground of new trial. ’ ’ Id. §265.

The principle involved is the identical principle governing the offer of evidence known to be inadmissible, i. e., the creation of a prejudice which in all probability cannot be removed. The proposition is well stated and applied, and a violation of the principle held reversible, in a very early decision by the Supreme Court of Michigan. Scripps v. Reilly, 38 Mich. 10, 14, 15 .

Recitals of counsel, in his opening statement, of inadmissible and prejudicial facts was held by the Supreme Court of Illinois to justify reversal. Hennies v. Vogel, 87 Ill. 242, 244 .

In the foregoing instances the rule was announced and acted upon in civil cases. It should be more strictly applied in criminal trials where the risk of prejudice is or *400 dinarily much greater. The Supreme Court of Michigan so applied it when the charge was receiving stolen goods and the prosecuting attorney, in his opening statement, asserted that defendant had committed perjury in another matter. For that error the judgment was reversed in an opinion in which Mr. Justice Campbell, speaking for the court, said: “In some cases, there is some apparent palliation in the excitement of a contested trial, although that does not obviate the mischief. But here the wrong was done in making the opening, and before any testimony was in, and when the prosecutor knew, or should have known, in advance what his case was to be, as he presented it. * * * The verdict must be set aside and a new trial granted.” People v. Moyer, 77 Mich. 571 , 43 N. W. 928 .

It has taken too many centuries, too much blood, and too many hard won constitutions, to insure men and women fair and impartial trials and freedom from the threat of convictions obtained by confessions extorted by torture, to permit these rights to be now prejudiced by hasty action. In the Moyer case, supra, Justice Campbell stated the point clearly when he said: “Nothing can bring more contempt and suspicion on the administration of justice than the failure of its ministers to respect justice. ’ ’

For the error herein discussed I think the judgment should be reversed.

I am authorized to say that Mr. Justice Alter and Mr. Justice Hilliard join in this dissent.