Opposition Brief — New Jersey v. Russo

“RIGKART . .

OFREME COURT, U. Be

Office-Supreine pus US.

e IN THE -

Suprvine Court of the Huited States -

_e Ten, 1965

~ No. 834

THE STATE OF NEW JERSEY and the PRINC.

- KEEPER OF THE STATE PRISON AT TRENT

NEW JERSEY, .

Petitioners, ‘

vs.

UNITED STATES OF AMERICA, ex rel. ANTHONY

_ RUSSO and UNITED STATES OF AMERICA, ez rel. .

- FRANK BISIGNANO,

_ Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES a OF APPEALS FOR THE THIRD CIRCUIT

seremnsiaaitaasimmsaataiiiaeataa iil lial iiatin

BRIEF FOR RESPONDENT, ANTHONY RUSSO, IN °

_ OPPOSITION AND CROSS-PETITION BY ANTHONY —

' RUSSO FOR WRIT OF CERTIORARI TO THE

- UNITED STATES COURT ‘OF APPEALS |

‘FOR THE THIRD CIRCUIT

‘ Raymonp A. Brown, |

Invine I. VocELmMan,

26 Journal Square,

Jersey City New bstiiet 07306

Attorneys for Respondent and ~

cena se czir Antone Russo.

Adams Presse Corp., 11 Commerce Street, Newark, N. J.—Market 3-8611-12

. ites

ed. . | Sane;

|. TABLE OF CONTENTS

| ‘ . a |» : § ee a i ‘

Brier FoR RESPONDENT, Russo, IN Opposition

Opinions BELOW.......... Er ee ning Ce ane an

JURISDICTION ..... Ape nee ee abiexskusaciukeds a

QUESTIONS PRESENTED. beets ‘ums Se eee eee TN

ConsriruTion aL Provisions AND + ie ‘INvoLvep. .

Amendment ee Peer oe eae

Amendment | oe Pa on SANTO Je

See. SP aradae TAP ET Set | reels Lea Wole a mics §

NEW JERSEY. RULEs oF CRIMINAL PRACTICE” . sie “ee

Rule 3:2-3. Proceedings before the Magistrate .

STATEMENT OF THE CASE.....++......; ae Careeak

AnrcuMENT—The decision below is clearly correct...

ConcLUSION ..:..,..... eK eee

‘Cross-Petition ror Writ or CERTIORARI TO THE

> Untrep StatEs Court or APPEALS FOR THE THIRD

‘a 3 Circurr ie. f

Opinions, Betow..... ne ARE OS RO NS, 23 °

| JURISDICTION .......,.026,.. ee Xen EPL Ae . =

Question PRESENTED ON Cross-Peririon............, 23

ConstiruTIONAL Provisions AND RULEs Ixyouvep. cee

Amendment V2 eee Pewee seep eeeeeneeees . 24

_ Amendment XIV eee wi ccehameniee si iadewa. cae

Us ee Ora ake piueoweataunee? Gael

0

bo hee

cow wn wp ww

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¥y

ii TABLE OF CONTENTS

Linkletter v. Walker, 381 U. S. 618 Pree 14,17 °°

PAGE

New Jersey Rutzs or Crimivan Practice........... 4

Rule 3:2-3. Proceedings before the — 24

StaTaMENT OF THE OSS eee een ae 26

Reasons FOR GRANTING THE WRIT............. Sere 26

COmCLUSION ........0200- ees fae ere Seen 82

Cases Cited

Ashcraft v. Tennessee, 322 U. S. 143 (1944)......... 27, 28

Betts v. Brady, 316 U.S. 455 (1942)................ 10, 20

Blackburn 'v. Alabama, 361 U.S.199................ 27

. Callegos v. Colorado; 370 U.S. 49 (1962)........... ao:

Carnley v. Cochran, 369 U. S. 506 (1962)....... ore 2

Colombe v. Connecticut, 367 U. S. 568 (1961)..... 28, 29, 32

Douglas v. California, 372 U. 8. 352............-. S.. 18

- Escobedo v. Illinois, 378 U. S. 478 (1964)......, 9, 11-20, 29 -

Fikes v. Alabama, 352 U.S. 191 (1957)......... Sooo. 31 ©

Gideon v. Wainwright, 372 U.S. 335 (1963)... .10, 14-18, 20°

Griffin v. California, 380 U.S. 609 (1965)............ 19

Griffin v. Iinois, 351 U.S.12..:..005.-...06000040 13

Haley v. Ohio, 332 U. S. 596 {1948).*............. . 29, 30

Hamilton v. Alabama, 362 U. 8. 52 (1961)........... 10,11

Haynes v. Washington, 373 U. S. 503 (1963)........ 19, 30

_ Johnson v. Zerbst, 304 U.S. 458................ a

| Leyra v. Denno, 347 U. S: 556............ Bier ch isk 27.

TABLE OF CONTENTS iii

‘PAGE

Malinski v. New York, 324 U.S. 401 (1945)....... tcc

PO Vs Te Ge ie GO ek cccncivcesescceetKias 17,18

Massiah v. United States, 37 U. S. 201 (1964).....9, 11,14

McLeod v. Ohio, 381 U. S. 356 (1965).....0.....00-: 10-12

Palumbo v. New Jersey, 334 Fed. 2d 254 (1964)....... 20

Payne v. Arkansas, 364 U.S. 560 (1958)............ 31

People v. Dorado, 42 Cal. Rpt. 169,°298 P. (2) 361,

pet Wits SE, I as ois Akvis op ieaws 13, 14

Powell v. Alabama, 287 U.S. 45 (1932)......... eee 20

Reck v. Pate, 367 U. S. 433 (1961)......... guccasan 26-28

Rideau v. Louisiana, 373 U. S. 723 (1963)........... 16

Spano v. New York, 360 U.'S. 315............... eae oe

State v. Blanchard, 44 N. J. 195 (1965)....... cr eteaat 10

State v. Dufour, 206 At. (2) 82 (R. I. 1965)...... a6, oa

State v. Green, —— N. J: ——,.decided on December

25, 1965........, iy es cele ge eee free SHALES 11, 13

State v. LaPierre, 39 N. J. 136 (1963).........0+-- 8

State v. Neely, 239 Ore. 487, 398 P7 (2) 482 (1965)... 14”

' Tehan v. Shott, —— U. S. —— (1966).............. 14, 19

Townsend y. Sain, 372 U. S. 293 (1962)............. 26

Watts v. Indiana, 338 U.S. 49 (1949).......-...6.5 27, 31

White v. Maryland, 373 U. 8. 59 (1963).....0....... 7 10 |

Wolf v. Colorado, 338 U. 8. 25....... De ies

United States v. La Vallee,, 330 F. 2d 303 (2 Cir.

GS ee es a

Ww TABLE OF CONTENTS

PAGE

U. S. ex rel. Wade v.J ackson, 256 F. 2d 7, Cert. Den.,

357 U. S. 908 (1958) Pena CAE CRM ts cab Mew wks es 31

. United States Constitution Cited

NN MUNIN 5, oo 55 vin be ncc ssc pepveense ss ove 5.

Sixth Amendment..... an ‘inwawns aa 18 |

_ Fourteenth Amendment ..... Eee eeianis tivo ho

| Statute Cited :

28 U.S.C.: :

See. 1254(1) .....5... Sen ge pm ieee aa 2, 23

IN THE

| Supreme Court of the Wnited States

Ocroser Term, 1965

No. 834

—%

Tue Srate or New Jersey and the Prixcipan Keeper

or THE Stare Prison at Trentox, New Jersey,

Petttwners,

Vs.

. ; ¢

Unrrep States or America, ex rel. ANytHONY Russo and —

Unirep States or America, ex rel. Frixx Bisicnano,

Respondents.

g

ON PETITION FOR WRIT “OF “ERTIORARI TO THE UNITED

STATES COURT OF APPEALS’ -FOR THE THIRD CIRCU!IT

¢

BRIEF: FOR RESPONDENT, RUSSO,

IN OPPOSITION

Opinions Below .

‘The opinions of the United States Court of Appeals for ,

the Third Cirenit, printed in the Appendix, Pet. App. 1

to 30 are reported in 351 F. 2d 429 (3 Cir., 1965).

2

| Jurisdiction

The United States Court of Appeals for the Third Cir-

cuit entered judgment in this case on May 20, 1965. The

State of New Jersey filed a petition for rehearing, which

petition was denied on October 13, 1960.

The jurisdiction of this Court is invoked ilies 28 US. C.

§1294(1).

“ ° Questions Presented

Whether a confession elicited from a defendant prior to

_ indictment, when he has been in police. custody for eight

days and the focus has shifted from a general inquiry into

an unsolved crime to an accusatory proeess and was not

advised of his right to counsel or his right to remain silent,

is rendered constitutionally inadmissible against him in @

State criminal trial?

Constitutional Provisions and Rules Involved

Amendment VI: | a

In all criminal.prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been. previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; to have. compulsory process for obtaining

_witnesses in his favor, and to have the Assistance of Coun-

; = for his defense.

: Amendment XIV:

Section 1. All persons nia’ or inicio in the United

States, and subject to the jurisdiction thereof, are citizens

3

of the United States and of the State wherein they’ reside.

No State shall make or enforce any law which shall abridge

the privileges , or immunities of citizens of the United

States; nor: shall’ any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

' New Jersey Rules of Criminal Practice

Rule 3:2-3. Proceedings before the Magistrate

(a) Appearance. ‘An officer making an arrest under a

warrant issued upon a complaint shall take the arrested

person, without unnecessary delay, before the court or

‘magistrate named in the warrant. A person making an

arrest without a warrant shall take the arrested person,

without unnecessary delay, before the nearest available

magistrate and a complaint shall be filed forthwith and

a warrant issued thereon. A preliminary hearing before

the magistrate shall be held forthwith.

(b) Preliminary Hearing. The magistrate shall inform _

the defendant of the complaint against him and if a copy

of the complaint has not previously been furnished to the

defendant, he shall be supplied with a copy. thereof. The’

magistrate shall also inform the defendant of his right to’

retain counsel or, if indigent, of the privilege of having

counsel assigned, and of his right to have a preliminary

examination. The magistrate shall allow the defendant

reasanable time and opportunity to consult counsel. He

shall also inform the defendant of his right to make a

statement not under oath as to the charge against him,

that he is not required to make such a statement and that

any statement made by him may be used against him. If

“

’

_ the offense: charged may ie tried by the magistrate upon

waiver of indictment and trial by jury, the magistrate shall

so inform the defendant. All waivers of indictment and

trial by jury shall be in writing, signed by the defendant,

and shall be filed and entered on the docket. hs

(c)’ Preliminary Examination. If the defendant does not

waive indictment and trial by jury but does waive pre-

liminary examination, the magistrate shall forthwith bind

him over to await final determination of the cause. If the

defendant does not waive examination, the magistrate shail ©

hear the evidence within a reasonable time. The defend-

ant may cross-examine witnesses against him: _ If, from

the evidence, it appears to the magistrate that there is

probable chase to believe that an offense has been com-

mitted and/the defendant has committed it, the magistrate

shall forthwith bind him over to await final determina-

tion of the cause; otherwise, the magistrate shall discharge

him; provided, however, that,a magistrate shall not dis-

charge the defendant without first giving the county prose- .

cAtor notice and an opportunity to be heard.- Such notice

ay be oral, or may be in writing, and shall state when

the county prosecutor may appear and be heard. An en-

try shall be-made‘on the docket as to when and how such

notice was given. The magistrate shall admit the defend-

ant bail as.provided by these rules. After concluding the

- proceeding the magistrate shall transmit, forthwith, to the

county prosecutor all papers in the cause in the event the

defendant is not discharged; provided, however, that when ~

the county prosecutor so requests the magistrate shall for-

‘ ward the papers to him even though the defendant is dis-

charged. Any bail taken by hjm shall be transmitted to the

county clerk.

ee ae Statement of the Cas¢

The record shows that on March 15, 1961, .respondent,

Anthony Russo, together with two co-defendants attempted .

to hold up a tavern in Newark, New Jersey. A police of-

ficer, victim of the abortive attempt, was off duty and in

the tavern at the time. Russo and another defendant,

‘Bisignano, entered the tavern while LaPierre remained

outside in a car that had been stolen earlier that evening.

There was testimony that the gun Russo was carrying ~

in his pants pocket became exposed to view when he opened

his coat in the tavern and that some movement on his part

with respect to the gun precipitated a struggle between

Russo and the police officer and in the course of the strug-

gle, there was an exchange of shots between Russo and

the officer which resulted in the death of the officer and the

wounding of Russo in his right arm.

. Russo was apprehended in the evening of March 15, 1961

and admitted to the Martland Medical Center, Newark,

New Jersey. After emergency treatment was rendered to

Russo, he was questioned for a short time by four mem-

bers of the Newark Police Department at some time gen-

erally between the hourS of 1:45 A.M. and 2:45 A.M.

’.(R 1137, 1171, 1176, 1182), but ‘he refused to admit com-

plieity in thé crime. ;

_ Russo also refused to permit an operation for: the re-

moval of the bullet from his arm. Because the pain from °

.the bullet became excruciating, Russo submitted to an op-

eration on March 17, 1961.: He was accompanied to the

operating room by a police officer. Upon his return from’

the operating room two policé officers: visited Russo and

questioned him concerning the incident of March 15, 1961.

The two officers told Russo fhat the co-defendants, La-

me EAM

6 \

Pierre and Bisignano, had made statements to.the police;

and also one Veronica, and they discussed parts of the

statements with Russo.

After the operation, Russo was Poy at the "hospital

until March 24, 1961 at which time he was released from -

the. hospital i in the custody of the police.\ It is undisputed

that during Russo’s entire detention in the hospital, he was

under constant police. guard. While detained at the hos-

pital, he was shackled to the bed. During the eight day

period at the ho#Pital, Russo was interrogated at different

intervals by the police officers. The Prosecutor of Essex

County also visited Russo at the hospital on March. 17,

1961 (R 1198). _ ;

After his release from the hospital, he was b ianedietaly

taken by police officer$ to the Newark Police Headquarters

for interrogation on March 2%, 1961. Lieutenant Kinney

testified that he saw the defendant on March 24, 1961 be-

tween 12:00 P.M. and 1:00 P.M. and that he had certain

conversations with the defendant, On cross-examination,

Lt. Kinney admitted that he made no representation . to

Russo as to his right of advice of counsel before he spoke — ;

(R 1161). According to the police testimony, the taking

of the written statement _— about 1:00 P.M. and. .

’ completed about 4:05 P.M.

_Russo was not arraigned on March ‘ 24, 1961 but’ was de-

tained at police headquarters from that date to March 28,

1961, where he was taken before a Magistrate. However,

on Mareh: 28, 1961, Russo’s hearing was postponed until °

April 4, 1961. No explanation appears in the record as

to the reason for the postponement. On-March 30, 1961,

the Grand Jury of Essex County, New Jersey returned an

indictment for murder against the defendant. No pre- ,

liminary hearing was granted to the defendant.

-

On the limited issue of the voluntariness of the confes-

sion, Russo testified he was taken, handcuffed, to the hos- -

pifal in the early morning of March 16, 1961 in a patrol

_ wagon. When he entered the hospital, a policeman hit

him in the stomach (R 1186). He was examined, x-rayed

and taken to the first floor of the hospital where he was

visited by several police officers. They questioned him,

grabbing him, then he got’a ‘‘shot in the face’’ (R 1188). °

On March 17, 1961 he was interrogated by the Prosecufor

of Essex County, New Jersey. aie:

After the operation of March 17, 1961, he ize questioned

by two police officers who wanted him to give them a state-

ment, but he refused. Russo claimed that they abused

him and tortured his arm. Ultimately, he was taken to

the police headquarters on March 24, 1961 with his arm -

in a sling. When he arrived at the police headquarters,

the sling was taken off. While at police headquarters

Russo described the treatment giyen him by Sgt. Buerle.

and the threat that if he didnot sign the written state-

ment: the police would take the typewriter and smash it

on his arm. Russo also testified that his arm was giving

him considerable pain; that he was being mistreated, by

Lt. Kinney and that Det. Richards threatened to throw

coffee at him. Russo claimed that he eventually signed

the statement because he was in pain and by that time he

would have signed anything (R 1194).

At the tria\in the Essex County Court, Law Division,

held at Newark), New Jersey there was psychiatric testi-.

mony to the effect that Russo was ‘within the lower

_reaches of the average range of intelligence.’’ There was

_ evidence that Russo: was ‘‘markedly deficient with respect |

to his capacity for verbal abstraction, the capacity to-think

abstractly, and the capacity; to evaluate external reality |

ee

8.

with any validity, with any substance, with any genuine. un-

‘derstanding of what i is going on around him * * * that his

- social judgment and perceptual alertness were massively

impaired with respect to what the norm might be.’’ “The

record also shows that at the time of the incident, ‘Russo

was twenty-one years old and awaiting sentenge for armed

robbery. ae :

The Essex County Jury vebeneadl a verdict of guilty of

first degree murder without any recommendation for mer-

ey, which is the death penalty in the State of New Jer-

sey. On appeal to the Supreme Court.of New Jersey,

Russo’s conviction nae See State Vv: LaPterre,

‘89 N. J. 156 (1963) |

Thereafter, Russo filed petition for Habeas Corpus -

Relief in the United States District’ Court for the District

of New Jérsey. On the return day of the Writ of Habeas

Corpus before the United States District Court, additional -

testimony was taken relating to Russo. Jean Wiener, a

supervising nurse at Martland Medical Center testified that ©

___on- March-16, 1961 she observed -the-defendant-and- his

' right arm had been shot. .She recalled that Russo was

yelling as she walked down the hall ‘‘I didn’t do it, I

didn’t do it.”’ On March 17, 1961 at 3:00 A.M. she again

saw Russo and his face lodked swollen. She. said, ‘‘ what

_ happened to your face’’, and he. replied, “they beat me’’.

She also stated that a Mrs. Hall, another nurse, had dif-

‘ficulty, in administering nursing care to Russo because of °

a manacle on his leg, which was corroborated by Juanita

. Hall. There,was also testimony by Dr. John F. Donato

- that ‘on March 21, 1961, he saw evidence of welts on the

arm of Anthony Russo. In his opinion, the results were

due to an allergic reaction either to penicillin or parazyme.

On eross-examination, he testified that he could not . tell

9°.

@

with any degree of medical certainty whether the welts

came from allergy or trauma and that. his: initial conclu-

sion that it was a result of a penicillin reaction he would .

_ have to assumé certain facts which he did not know, and

which were not before him.

The United States District Court made affirmative find- ,,

ings that at no time prior to the signing of his confes- —

sion did the police inform Russo that he had a right to

remain silent; that he had a right to counsel; and that

anything he said could be used against him. Tt further |

appears that not Watil April 4, 1961 was Russo informed”.

of his rights. These findings of the United States District ..

Court were affirmed by the United States oo of Ap-

peals (Pet. App. 6a). ,

The United States District Court denied the Writ of —

Habeas Corpus. Russo thereafter filed an appeal from :

the denial of ‘Habeas Corpus Relief with the United States _ |

Q& «

_» Court of Appeals for the Third Circuit. On May 20; 1965,

‘ that Court reversed the judgment of the United States |

~~ District ‘Court for the District of New J _. and granted

Russq a petition of Habeas Corpus.

Thereafter, the State of New Jersey filed a petition for

rehearing in the United States Court of Appeals for the

Third Circuit: which petition was denied in an Order filed

on October 13, 1965. ats ,

4

ARGUMENT.

The decision below is clearly correct. - ef ee

1. Petitioner admits that Escohedo v. ‘Illinois, 378 U. S.

478 (1964) was surely a. logi¢al follow up to Massiah v. am

Umited States, 377 U.S. 201 (1964), ore S Brief,. es

10

p. 14) but attempts to limit the application this. con-

stitutional rule to the particular facts. The Petftioners also

find fault with the reasoning.of the Court below when

it said ‘‘The effect of Gideon has been to-expand the right

to counsel and thére has also been a widening of the con-

cept of stage or stages when that right attaches. We con-

clude that it is now the law that the right to oounsel,is

‘present at every critical stage of the proceedings.’’,

In Gideon. Wainwright, 372 U.S. 335 (1963) this Court

discarded the ‘‘fundamental fairness’’ tést ‘of Betts v.»

Brady, 316 U. 8. 455 (1942), and held that the right to

Court appointed counsel in State trials was guaranteed by

the Fourteenth Amendment’s due ‘process clause. Prior

_ to the decision of Gideon this Court in Hamilton. vy. Ala-

bama, 862 U. S. 52, 4-% (1961) held that since the ar-

raignment ‘‘may affect the whole trial’’ it was a critical

stage at which the defendant had a right to the assist-

ance of counsel without regard to ‘‘ whether prejudice re-

sulted’. The Hamilton haiding was extended in White v.

Maryland, 373 U. S. 59 (1963)°"where this Court held that

the preliminary hearing in Maryland was a ‘‘critical stage”’

at which the defendant, had a right to counsel unqualified

by judicial analysis of the degree of prejudice.

Thereafter in 1964, this Court in Massiah v. United

States, 377 U. 8. 201 held that in the post-indictment stage’

any statement elicited by the police in absence of counsel,.

is inadmissible. The Massiah decision was given further

; expression in McLeod v. Obio, 38] U. S. 356 (1965),. when

this Court applied the rule of Massiah to a post-indictment

interrogation where counsel had been neither retained nor

requested.

4

Significantly, it should be noted that the New J ersey Su-

preme Court in State v. Blanchard, 44 N. J. 195 (1965)

° * -

‘

ll

ad . .

refused to give full recognition to the principal enunciated

in Massiah y. United States. However, the New Jersey

Supreme Court was compelled to reverse its position in

State v. Green, —— N: J. ——, decided on December 23,

1965 and now holds that ‘‘In the light of McLeod we must

now interpret Massiah as holding that after a defendant

is indicted, any statement elicited by the police in the ab-

sence of counsel is inadmissible even where the statemeni

is voluntarily given.

In Escobedo v. Illimois, 378 U. S. 478, 492 (1964) this

Court held that the right of counsel attaches when the

process shifts from the investigatory to the accusatory—

‘when its focus is on the accused and its purpose is to elicit

a confession—our adversary system begins to operate, and,

under the cireunistances here the accused must be permit-

ted to consult with his lawyer. The confession obtained

by the police in Escobedo was held inadmissible because it

was obtained in violation of defendant’s right to the as-

sistance of counsel under the Sixth Amendment as’ made

obligatory upon the States by the Fourteenth Amendment.

The effect of Escobedo is to extend the ‘‘critical stage’’

of Hamilton v. Alabama, supra, forward into the pre-in-

dictment investigation, to the point at which ‘‘the process ©

shifts from the investigatory to the accusatory’’. Mr.

Justice Goldberg noted that the interrogation qf Escobedo

was ‘surely as critical as was the arraignment in Hamil-

bon. . Thus, a characteristic of the ‘‘eritical stage’’ is

the aeccrual.of an unqualified right of counsel. Escobedo

holds that the absence off counsel after the right has ac-

eruéd is itself a violation of a constitutional right and a

justification for reversal of any subsequent conviction.

At the time Russo’s confession was obtained, the focus

had shifted from the investigatory to the accusatory. At

the time Russo confessed, the police had the confessions

of the two co-defendants. Additionally, as to Russo, the

police were in possession of a liquor bottle and its carton,

both of which contained Russo’s fingerprints. Russo’s gen-

eral description was given to the police by eye witnesses

and he had been identified as possibly being one of the

‘hold-up men. The finding by the Court below that the

focus had shifted from the investigatory to the accusatory

is amply supported by the record. :

Petitioner in its attempt to restrict Escobedo to the facts

of that case, finds fault with the Circuit Court’s conclu-

sion, ‘‘ We perceive no sound basis for holding that a re-

quest for counsel is a-pre-requisite for the right to coun-

sel at the interrogation stage while not at any other’’.

We submit that this conclusion is eminently correct even

though there is a factual distinction between the Escobedo

case and this case, namely the request for counsel. That

_Damny Escobedo prior to his arrest had retained counsel

while Russo was unable to retain one, does not delimit the

applicability of the Escobedo decision to this case. Deci-

sions of this Court have made it abundantly clear that the

right to counsel does not depend upon a request, Carnley .

v. Cochran, 369 U. S. 506 (1962); McLeod v. Ohw, 381

U. S. 356 (1965), and that a waiver of constitutional di-

mensions is not to be presumed but requires an inten-

tional relinquishment or abandonment of a known right or

privilege Johnson v. Zerbst, 304 U. S. 458, 464.

As the Court below correctly stated, the test of waiver

is the same, or should be, no-matter what stage of the pro-

ceedings is at issue so long as the right has attached.

- Escobedo recognizes this principle, ‘‘The accused may, of

course, intelligently and knowingly waive his privilege

against self incrimination and his right to counsel either

at the pretrial stage or at the trial. But no knowing and

¢

$k tebe trees

13

intelligent waiver of any constitutional right can be said

to have occurred under the circumstances of this case.’’

378 U.S. at 490. :

Escobedo had previously consulted with his attorney and

apparently was acquainted with his constitutional right to

remain silent and his right to counsel. Yet, this Court |

held at the very moment he was confronted with i inerimina-

tory statements, he was entitled to the ‘*guiding hand of

-eounsel’’, Escobedo was charged with homicide; Russo

was also charged with homicide. Russo was under con- —

stant Surveillance by the police for eight days while in the

hospital. Russo was ultimately assigned counsel. To pro-

vide special protection for’ those who can afford counsel

as opposed to those who cannot, would smack of a denial

of ‘equal protection. See Douglas v. California, 372 U. 8S.

352; Griffin v. Iinois, 351 U. 8. 1% -The view advocated

here is well expressed by the Supreme Court of California

in People v. Dorado, 42 Cal. Rpt. 169, 178, 398 P. (2) 361,

369, 370, cert. den. 381 U. S. 937: ‘‘Finally, we must regog-

nize that the imposition of the requirement for the re-

quest would discriminate against the defendant who does

not know his rights. The defendant who does not ask

for counsel is the very defendant who most needs coun-

sel. We cannot penalize a defendant who, not understand-

ing his constitutional rights, does not make the formal re-

quest and by such failure demonstrates his helplessness.

To require the request would be to favor the defendant

‘whose sophistication or status has fortuitously prompted

him to make‘it.”” _

It is interesting to note that the Supreme Court of New.

Jersey rigidly adheres to the factual pattern of Escobeda

and holds that in the absence of a specifie request for coun-

sel, Escobedo is inapplicable. Reeently, in December, 1965,

in State v. Green, that court held that tle failure of the

14

police in the post-indictment stage to advise the defend-

ant of his right to obtain legal assistance and that if he ©

were indigent, counsel,would be assigned, was not a waiver

of iis constitutional right of the assistance of an attorney

and further held that any statements elicited in the ab-

sence of counsel is inadmissible, even where the statement

-is voluntarily given. It would thus seem that the New

Jersey Supreme Court has placed. itself in an anomalous

position applying different standards of waiver depend-

ing upon the pre-indictment and the post- indictment stage,

Those Courts that have limited the application of Esco-

bedo have done so by relying on the ‘‘request’’ feature.

In contrast, those Courts that. have applied Escabedo to

the present situation, have done so by a careful examina-

tion of Escobedo in the context of the recent right to coun-

sel cases. Accord State v. Dufour, 206 At. (2) 82 (R. I.

1965) ; State v. Neely, 239 Ore. 487, 398 P. (2) 482 (1965) 5 :

People .v. Dorado, 398 Pac. (2) 482 (1965).

2. Initially, it is to be observed that the issue of retro-

activity was not raised before the United States District

Court nor ‘in the Court below, except by petition for re-

hearing. The Court below declined fo pass upon the issue

of retroactivity where it had been raised for the first time

in this fashion. However, since the Petitioner has raised

the point, we will answer it.

Gideon vy. Wainwright, 372 U.S. 335 (1963) established

that every person accused of a crime, whether State or

Federal, is entitled to a lawyer at trial and it is judicially

accepted that Gideon is entitled to retroactive effect: Tehan

v. Shott, —— U. S. —— (1966); Linkletter v. Walker.

281 U. S. 618 (1965); United States v. La Vallee, 330 F.

2d 303 (2 Cir. 1964). Following Gideon, this Court ruled

in Massiah ¥. United States, 377 U. S. 201 (1964). that

15

in the post:indictment stage, the criminal defendant -has

a right to assistance of counsel. Thereafter, in Escobedo

v. Illinois, 378 U. S. 478, 486 (1964) the right to assistance

of counsel was extended to the pre-indictment interroga-

tion, the Court emphasizing that ‘‘* * * It would exalt from

over substance to make the right to counsel, under these

circumstancés, depend ‘on whether at the time of inter-

rogation the authorities had secured a formal indictment.

Petitioner had, for all practical purposes, already been

charged with murder.’’. Escobedo extended to the pre-

indictment interrogations the right established by. Gideon

to counsel at trial. Thus the doctrine enunciated in Gideon

v. Wainwright relating to the ‘assistance of counsel is ex-

tended in Escobedo to the time when the process shifts

from the investigatory to the accusatory stage. When.

that stage is reached, the accused is entitled to a lawyer.

Since Gideon has been applied retroactively and Escobedo

is an extension in time of its principle, it follows—that

Escobedo, too. should be given retroactive effect.

As this Court said in Gideon vy. Wainwright :

‘A defendarit’s need for a lawyer is nowhere bet-

ter stated than in the moving words of Mr, Justice

Sutherland in Powell y. Alabama: ‘The right to be

heard would be, in many cases, of little avail if it

did not comprehend the right to be heard by coun-

sel. Even the intelligent and educated layman has

small and sometimes no skill in the science of law.

If charged with crime, he is incapable, -generally, af

determining for himself whether the indictment is

good or bad. * * * He lacks both the skill and know!-

edge adequately to prepare his defense, even though

he have a perfect one. He requires the guiding

hand of counsel at every step of the proceedings

against him. Without it, though he be not guilty, he

16

- faces the danger of conviction because hé does not

know how to establish his innocence.’ 287 U.S. [45]

at 68-69, 53 S. Ct. [55] at 64, 77 L. Ed. 158.”’

In Escobedo it was recognized that these same consider-

ations were applicable at a pre-indictment interrogation.

Using the same words of Justice Sutherland as. Gideon

cited, the Court said that ‘‘the ‘guiding hand of counsel’

was essential to advise petitioner of his rights in this deli-

cate situation.”’ It continued ‘‘This was the stage when —

legal aid and advice were most critical to petitioner.”’

Therefore we submit that there can be no basis for dis-

tinguishing the two cases in terms of the retroactivity of

their application. — ae ary -

The direct connection between Gideon and Escobedo can

be seen also in the fact that both cases are based upon the

Sixth Amendment provision that ‘‘In all criminal prose-

eutions, the accused shall enjoy. the right to have the as-

sistance of cognsel for his defense.’’ If the Sixth Amend-

ment guarantee is to be given retréspective effect in one

decision, then it is surely unreasonable to deny that guar-

antee the same effect in another. -The Petitioner advances

.the proposition that this Court should deny the constitu-

tional right enunciated in Escobedo to. those who happened

to be tried before the decision was rendered. To accept

this thesis would be to assign a lower constitutional status

to pre-Escobedo prisoners than to pre-Gideon. prisoners

where the same constitutional amendment is~involved. It

. would deny a right so fundamental and essential that it

is made obligatory, upon the States by ‘the Fourteenth

Amendment to the United States Constitution; a right that

has been characterized by this Court as a ‘‘basic minimal’’

right vouclisafed by the Constitution. Rideau v. Lowisiana, «

873 U. 8. 723 (1963).

i os

In Linkletter vy. Walker, 381 U. 8. 618 the Court held

that the exclusionary rule of Mapp’ v. Ohio, 367 U. S. 643,

was not to be given retroactive effect. This Court. also

stated that it would apply its decision retrospectively when

‘*the princ ple we applied went to the fairness of the trial—

the very integrity of -the fact-finding process.’’ Since

Escobedo extends to the pre-indictment interrogation, the

time at which the right to counsel attaches, it should fol-—

ow that the right is as fundamental and basic to a fair .

_ proceeding at that stage as at trial, By the Court’s own

eriterior of fairness then, Escobedo should be accorded

retrospective effect. Any attempt to distinguish between .

_ the right to counsel at trial (established by Gideon) and |

the right to counsel at the intérrogation stage, (established

by Escobedo) is rejected by this Court in nacnieieiey 378

U. S. 487, 488:

“*** The rule sought by | the State here, iplionee:

would make the trial no more than an appeal from

the interrogation: and the ‘right to use counsel at

the’ formal trial [would be] a very hollow thing

[if], for all practical purposes, the conviction is al-

ready assured by pretrial examination.’ In te Gro-

ban, 352 U. S. 330, 344, 1.L.’ Ed. 2d 376, 387, 77

*S. Ct’510 (Black, J., dissenting). ‘One can igaagine

a cynical prosecutor saying: ‘‘Let them Mave the

most illustrious counsel, now. They can’t,escape the

noose. There is nothing that counsel can do for

them at the trial.’?’’ Ex parte Sullivan, 107 F. Betas

014, 517-518.’’

While Gideon and Escobedo were both concerned ‘with

the issue of: right to counsel, Mapp was concerned with

the entirely different ordileas of illegal search and seiz-

ure. Gideon and Escobedo were both based on the same

18

Amendment—the Sixth—while Mapp is based upon the

Fourth. Moreover, Mapp v. Ohio was essentially a rule’

aimed at discouraging certain kinds of undesirable con-

duct by the police. That this is so is indicated by the

words of the Mapp opinion, the nature of the Fourth

Amendment guarantee which does not directly concern

the judicial process, and by the historical development of

the Mapp decision from Wolf v. Colorado, 338 U.S. 25. It

involved no question of the guilt or innocence of a defend-.

ant. The Gideon and Escobgde decisions however directly

concerned the validity of the process by which the ac-

cused are found guilty.

____ Judge Forman in-his- concurring opinion on the denial

of the petition for rehearing in this case summarized the

two critical factors which reflect the underlying policy of

the Escobedo rule. 1. The assistance of counsel at the ac-

cusatory stage of the proceeding enables the accused to

properly exercise his right. 2. Implementing a right to

‘. eounsel dt the accusatory stage assistséin the difficult task

of resolving the question of coercion where a confession

‘is obtained during a closed interrogation. (Pet. App. 28a).

Judge Forman further made this pertinent statement when

he said ‘‘When a conviction is-sought assisted by the in-

troduction of a ¢onfession, failure to apply the Escobedo

rule (which now enables the accused to properly exercise

his rights at the accusatory stagéjof the proceedings maxi- |

mizes the ability of the judiciary to rule on the voluntari- |

ness of a confession) has the potential to impair the fair-

ness of a trial and to weaken the antogenty of the fact-.

finding process.”’

»As we have seen from the discussion of the right to |

counsel, the voluntariness or involuntariness of a confes-

sion is not the only standard by which the fairness or in-

19

tegrity of a criminal prosecution is to be measured. It ——

is apparent however, that this Court in Escobedo gave

* great consideration to the issue. It spoke quoting Haynes

v. Washington, 373-U. S. 503 (1963), of the fact that ‘‘his-

tory amply shows that confessions have often been ex-

_torted to save law enforcement officials the trouble and

effort of obtaining valid and independent evidence .. .

and emphasized that promises contingent upon confession

had been mage to the accused. Thus, this Court recog-

nized the voluntariness of. Escobedo’s confession was still

at issue despite the finding of the lower court that it was

voluntarily, and indicated that fhe question of voluntari-

ness could not be satisfactorily settled in any case with-.

out an attorney being present. In essence then, Escobedo

made the factor of counsel non- -participation at the accusa- -

tory stage of the proceeding another independent basis for

' confession inadmissibility. ‘On this ground, too, Escobedo

_ should be made to apply retroactively.

This court in the very recent case of Tehan v. Shott,

— WU. 8. (1966) held that the rule enunciated in

Griffin v. California, 380 U. S. 609 (1965) does not require

retroactive application. One of the reasons advanced

was, ‘‘By contrast, the Fifth Amendment privilege against

self-incrimination is not an adjunct to the ascertainment

of truth. That privilege, like the guarantees of the Fourth

Amendment, stands as a protection of quite different con-

stitutional values—values reflectiflg the concern of our

society and the right of each individual to be left-alont.’’

In the very same case, this Court held, ‘‘The basic purpose

of a trial is the dotermanasen of truth, and it is self-evi-

dent that to deny a law b sgeli s help through the technical in-

tricacies of a criminal trial or to deny a full opportunity

to appeal a conviction because the aceused is poor is to

impede that purpose and to infect a criminal proceeding

20

with the clear danger of convicting the innocent. See

Gideon v. Waimivright, 372 U. S. 335,. Dougherty v. Maz- .

well, 376 U.S. 202, Griffin v, [imois, 351 U.S. 12; Eskridge

ashington Prison Board, 357 U. S. 214. The same can —

ile be said of the wrongful use of a coerced confession.

See Jackson v. Denno, 378 U. S..368; McNerlin v. Denno,

378 U. S. 575; | Reck v. Pate, 367 U. S. 433.”’ ,

Since this is a capital case we submit that the itn.

' Escobedo rule should have been applied in theory atleast —

since Betts v. Brady, U. S. 455 (1942). The genesis of the

Gideon Rule is found in Powell v. Alabama, 287 U. S. 45

(1932) where the Court said ‘‘he requires the guiding

hand.of counsel at every stage in the proceedings against

him.’’ In Gideon this Court said the fact is that in decid-

ing as it did—that ‘‘appointment of counsel is not a‘fun- -

damental right essential to a fair trial—the court in Betts

v. Brady made an abrupt break with its own well-consid-

ered precedents and ‘‘The Court.in Betts v. Brady de-

parted from the sound wisdom upon which the Court’s

holding in Powell vy. Alabama rested.”

In any case, the effect of applying the Escobedo décision

- retroactively would not be so severe as the Petitioner con-

tends. Prisoners would rrot necessarily released, but

only’ retried. If found guilty, they would be subject to

the imposition of harsher fines and sentences than they

originally received. This fact alone would probably deter

“many prisoners from instituting habeas a proceed:

ings.

Paraphrasing the anensinn of Palumbo v. Yew Jersey,

334 Fed. 2d°254 (1964) it is, of course, possible that some

persons ‘‘who present reasonable risks of ever- becoming

productive citizens’’, would be rgleased by giving Escobedo |

. vetrospective effect, how ever as the Palumbo opinion con-

!

f

Va

21

inues ‘‘This unfortunate effect . .'. will disappear with-

na few years. It is, we suspect, in the nature of growing’

ains of a society dedicated to establishing an ordered

ense of liberty for every individual be he indigent or not.’’

p. _

CONCLUSION Ge ee ee

For the dleniiies reasons, it is respectfully urged that .

his petition for a writ of certiorari should be denied.

ion

D>

[Cross Peririon Fotiows]'

—“

—-— —— o <a Wie Saeed

*

CROSS-PETITION F OR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

_ FOR THE THIRD CIRCUIT

i

Respondent and cross petitioner, Anthony Russe, prays ©

that a writ of certiorari issue to review the decision of the

Court below holding that Respondent’s confession was not

coerced in violation of the Fourteenth \mendment. The

writ to issue only in. the event this Court should grant

the petition for a writ of certiorari in No. 834 in this term.

Opinions Below :

The opinions of the United States Court of Appeals for

the Third Circuit, printed in the Appendix, pp. 1a to 30a

are reported in 351 F. 2d 429 (3 Cir., 1965):

The United States Court‘of Appeals for the Third Cir-

euit entered judgment in this case on May 20, 1965. The

State of New Jersey filed a petition for rehearing, which

petition was denied on October 13, 1965.

Jurisdiction

The =) of ‘this Court is invoked under 28°

. U. S.C. $1954 (1). a

Question Presented on Cross-Petitin’

. Is due process of law denied to a defendant by the ad-

mission into evidence of a confession obtained under gir-

cumstanges whose totality presents a picture of everbear-

ing def, ndant? s free will?

;

° (23). oh

¢ ; 94

Constitutional Provisions and Rules Involved

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the.

right to a speedy and public trial, by an- impartial jury of

the State and district wherein the ¢rime shall have‘ been

committed, which district shall have been previously as-

certained by law, and to be informed of the nature and

_ eause of the accusation; ‘to be confronted with the wit-

nesses against him; to have compulsory process for ob-

taining witnesses in his favor, and to have the Assistance

of Counsel for his defense.

Amendment XIV:

Section 1. All persons born or naturalized i in the United

_ States, and subject to the jurisdiction thereof, are citi-

zens of the United States and of the State wherein they

reside. No State shall make or enforce any law which.

abridge the privileges or immunities of citizens of

the Pnited States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

proteetion of the laws.

es

New Jersey Rules of Criminal Practice.

Rule 3:2-3. Proceedings before the Magistrate

(a) Appearance. An officer making an arrest under a

warrant issued upon a complaint shall take the arrested

person, without unnecessary delay, before’ the court or

magistrate named in the warrant. A person making an

arrest without a warrant shall take the arrested person,

‘ without unnecessary delay,- before the nearest available

magistrate and a complaint shall be filed forthwith and a -

warrant issued thereon. A préliminary hearing before the

magistrate | shall be held forthwith. | '

j ‘

.

Aa

(b). Preliminary. Hearing. The magistrate shall inform

the defendant of the complaint against him and if a copy

of the complaint has not previously been furnished to the

defendant, he shall be supplied with a copy thereof. The

magistrate shall also inform the defendant of his right to

retain counsel or, if indigent, of the privilege of having

counsel assigned, and of his, right to have a preliminary

examination. The magistraté shall allow the defendant rea-’

sonable time ro pthread to consult counsel, He shall

' also inform thé @@fendant of his right to make a statement

not under oath as to the charge against him, that he is

not required to make such a statement and that any state-

ment made by him may be used against him. If the offense

charged may be tried by the magistrate upon waiver of ip

dictment and trial. by jury, the magistrate shall so inform

the defendant.. All waivers of indictment and trial by jury

.shall be in writing, signed by the defendant, and shall be

filed and entered on the docket.

(c) Preliminary Examination. If the defendant does not

waive indictment and trial by jury but does waive prelim-

inary examination, the magistrate shall forthwith bind him ~

over to await final determination of the cause. If the de-

fendant does not waive examination, the magistrate shall

hear the evidence within a reasonable time. The defendant

may cross-examine witnesses against him. If, from the evi-

dence, it appears to the magistrate that there is probable

cause to believe that an offense has been Gommitted and .

the defendant has committed it, the magistraté shall forth-

with bind him over to await final determination of the

cause, otherwise, the magistrate shall discharge him; pro-

vided, however, that a magixtrate shall not discharge the de-

fendant without first giving the county prosecutor notice

and an opportunity to be heard. Such notice may be oral, or

may be in writing, and shall state when the county prosecu-

26

| tor may appear and be heard. An entry shall be made on the

docket as to when and how such notice was given. The mag-

istrate shall admit the defendant bail as provided by these

rules. After concluding the proceeding the magistrate shall

transmit, forthwith;to the county prosecutor all* papers

in the cause in the event the defendant is not discharged;

provided, however, that when the county prosecutor so re-

- quests the magistrate shall forward the papers to him even —

though the defendant i ba discharged. Any bail taken by him

shall be transmitted to the county clerk. |

‘desma ab tebe

In Cross-Petitioner’ s answering brief, the statement of

facts is set forth.therein and B Cross-F'eGijener makes them

a part hereof.

Reasons for Granting the Writ

On the issue of - voluntariness, the Court below found .

-Russo’s confession voluntary. Under the circumstances

of thi case, we submit that this holding is in conflict with

previously rendered decisions of this Court. In its opinion

the Court below after describing the police activities while —

Russo was. confined to the hospital said ‘Interrogation of

Russo, under the circumstances seems repugnant to con-

i cepts of fairness’’. (Pet. App. 9)

Any questioning by police officers which in fact produces

a confession which is not the product of a free intellect is

inadmissible, Townsend v. Saim, 372 U. S. 293 (1962). If

an individual’s ‘‘will was overborne’’ or if his confession

was not the product of a rational intellect and, free will

‘this confession is inadmissible because coerced”. Reck vy.

, os . ; i | ! mi, i 4

| !

27

Pate, 367 U. S. 433 (1961); Blackburn v. Alabama, 361

U. 8S. 199, 208. The question in each case is whether the

defendant’s will was. overcome atthe time he confessed.

The use in a State criminal trial of a defendant’s confes-

sion, obtained by coercion, whether physical or mental is

forbidden by the 14th Amendment... Let yTa V. re 347

U.S. 556.

Comparison of the facts in the case at bar with the facts ©

of some leading coerced confession cases compels the con-

clusion that the Cross-Petitioner’s inculpatory statements

were neither in fact nor in law the product ¥f a free intel-

lect. The undisputed facts revealed that the Cross-Peti-

tioner was subjected to a combination of coercive forces

as overwhelming as any involved in recent coerced confes-

sion cases, in which convictions of state prisoners have

been set eside in the United States Supreme Court. In-

deed, the undisputed facts in this case show a totality of

circumstances even more compelling than the circumstances

present in a number of leading cases. The following com-

parison. of the significant undisputed facts of this case with

the facts of some of the leading cases in which confessions

have been ‘held involuntary is cffered for the purpose of

substantiating these assertions.

_Protracted police questioning of an accused while he is

held incommunicado and without being advised of his con-

stitutional rights is highly significant to fhe constitutional

conclusion in a coerced confession case. Such interrogation

has been held to be inherently coercive. E.g., Ashcraft —

v. Tennessee, 322 U. S. 143 (1944)Phlso Callegos v. Colo-

_ rado, 376 U. S. 49, 51 (7962). Detention of an accused in

the complete and exclusive control of the police ‘‘breeds

evereed confession’’ and is root of the evil. Watts v. Jn-

diana, 338 U. S. 49, 57 (1949).

. 28

:

In Ashcraft v. Tennessee, supra, the interrogation lasted

for 36 hours, somewhat longer than the interrogation here,

but the witness was a mature man of ititelligence and stand- __ |

ing.in the community. He apparently was in good health.

In the case at bar, the questioning of the Cross-Petitioner

began on March 17, 1961, while he was in the hospital cer-

tain admissions were obtained from him. At that particu-

_ lar time surgery had just been completed. Upon his dis-

charge from the hospital he was immediately taken to the

Newark’ Police Headquarters at 11:00 A.M., questioned

-and the signing of the confession was completed at 4 :05

_ P.M.. The physical state of the accused is, of course, a

relevant factor on the issue of voluntariness. See Colombe

v. Connecticut, 367 U. S. 568, 602 (1961); Reck v. Pate, 367

U. S. 433, 441-43 (1961).

Other decisions have found confessions to be involuntary

_ ‘even when derived from much shorter periods of interro-

_ gation than those involved in the Ashcraft case. In Mal-

inski v. New York, 324 U. S. 401 (1945), the accused -was

arrested at 8:00 A.M.; he confessed: at 6:00 P.M. although

he was not questioned constantly and was allowed to have

private conversation with a friend. Cross-Petitioner, on

the other hand, did. not speak to any friendly person until

after the police had extracted the last of his ineulpatory

statement on March 24, 1961. In fact, he was held incom-

municado for nine days under police guard at the Mart-

land Medieal Center. During that. period of time police

did not advise him of his constitutional rights nor was he

told that he had the right to refuse to make a statement ;

nor was he told that any statement that he might make

could be used against him and was not told of his right to

be represented by counsel.

ie Spano v. New York, 360.U. S. 315 3, — inka sur-"

rendered. to the authorities at 7:00 P.M. and the last of

; 29

. i .

of his incriminating statements was made at 6:00 A.M. the

‘next morning, after nine hours of actual questioning. He

had not been allowed to consult with his attorney but pre- ©

sumably was aware of his right to one and specifically

had been advised to remain silent, as Russo had not been. .

Spano had a history of emotional instability, but Russo

was also maladjusted and-a few years younger. The sum

of these facts surely have as much constitutional signifi-

cance as the denial of Spano’s request to see his previously

retained attorney. Escobedo v. Illinois, 378 U. S. 478

(1964). | in

In Culombe ¥: Connecticut, 367 U. S. 568 (1961), the ac-

cused was apprehended on Saturday and did not confess

until, the following: Wednesday, but the most: extended —

session of questioning prior to the first confession ran only

three and one half hours and included substantial respites:

He received ample food and sleep; there was no claim of

physical brutality. Throughout his detention the accused

displayed a cooperative attitude between his interrogations.

Moreover, Culombe, although of low intelligence was 33

. years old dnd in good health. It could hardly be presumed

that he was: more suggestible or susceptible to intimida-

tion than was Cross-Petitioner, who at the time of his or-

deal with the police was only 21 years of age, had a history

of emotional disturbance and was weakened by. the linger- |

ing effects of his surgery:

In Haley v. Ohto, 332 U.S. 596 (1948), a 15 year old —

boy confessed after five hours questioning, when confronted. -

with false confession made by alleged accomplices. He

was not advised of his right to counsel and to remain silent

until the signing of the confession. Though Russo was six

years older he was interrogated at the hospital and there-

- after at the police headquarters from 11:00 A.M. until

4:05 P.M., he likewise was not advised of his rights. The

30

Supreme Court found that. Haley’ s confession should have

-been excluded and we submit that this conclusion logically

extends to Russo as well.

In Haynes v. ‘ Washington, 373 Uv. S. 503 (1963), there

was no claim of physical abuse, deprivation of food or rest,

or uninterrupted long periods of questioning. The accused

was a mature individual who had a record of previous

contacts with the police. Haynes confessed his crime once -

* to the arresting officers on the way to: the police station,

again after. ¥% hour of questioning that evening, and again ~

during 114 hours of questioning the next morning. The last

and admitted into evidence. This confession was held to

have been coerced through the combination. of a threat of

continued detention and the promise that defendant could

see his family if he confessed. This pressure falls far short

. confession was signed that afternoon, 16 hours after arrest -

of that to which Russo was subjected. for a longer period ,

of time and with a lesser ability to resist, considering his

emotional instability and physical pain resulting from sur-.

gery.

_ Also of high significance to the constitutional. conclusion |

that the confession is coerced is the attitude of the police

as revealed by certain objective facts. The attitude is note-

worthy because r¢ dears on what really happened during

the secret interrogations, a subject of inevitable dispute,

between the accused and the police. In Haley v. Ohio, supra,

the accused, a 15 year old boy, confessed to participation in

a murder after five hours of questioning. Although a news-

paper photographer was allowed to see him and to take

his lawyer was allowed to see-him until several days la

his picture, as-soon as he confessed neither his mother ien\

ter

‘The Court pointed out that these facts showed a callous

police attitude of their methods in extracting the’ confes-

‘sion, ™ at 600. The same source of callous police attitude

i ike he

31

is revealed in this case by a host of, undisputed facts such

as the pérsistent questioning by Cross-Petitioner, first at

the hospital and..thereafter at police headquarters, by the

failure at-arty time during his period of hospitalization and _

at¢the interrogation to advise him of his right to counsel;

by the failure to inform him of his right. to remain silent

and by the tong delay in bringing Cross‘Petitioner before

a Magistrate, a delay which sina even after he had.

made the alleged confession.

What was said by the United States Court of Appeals

é for the Second Circuit in U. S. ex.rel. Wade v. Jackson, 256

F. 2d 7, 16, Cert. Den. 397. U. S. 908 seenee is equally ap-

propriate to this case:

eS

‘When law enforcement - officials create a. situa-

tion where those in cugtody have no means of com-

municating with the outside world and no way of

calling their plight to the attention of any disin-

terested persons for as long as 23 hours, common

_ sen#@ requires that we conclude that the observance.

of fe constitutional rights of their prisoners was.

secondary to obtaining incriminating statements .

from those so isolated. Such methods - inherently -

- eoercive.”’

Delay in arraignment, aside from its bearing on the at-

titude of the police, has been considered a significant fac-

‘tor in the totality of cireumstances which must be con-

sidered in determining whether a confession is involuntary.

_ Payne v. Arkansas, 364 U: S. 560, 563 (1958) ; Fikes v. Ala-

bama, 352 U.S. 191, 199 (1957) ; Watts v. Indiana, 338 UW'S.

49, 56-57 (1949). Here, in this case, for 9 days while Cross- a

Petitioner was hospitalized there was no arraignment. The

confession was obtained on March 24, 1961. The arraign-

ment and preliminary hearing scheduled for March 28, 1961

32 .

2

were adjourned without explanation on the senend herein

until April 4, 1961. In the interim, on March 30, 1961 the

Cross-Petitioner was indicted. -

'-It is submitted that the. true rule ‘as stated in Culombe

v: Connecticut, 367 U. S. 568, 581-582, applies herein:

++ =" «Tts essence is the requirement that the State

which proposes fo convict and ish an individual

produce evidence ‘against him bythe independent

labor of its officers, not. by the simple, cruel H expedi-

ent of forcing it from his own lips.”” *

‘CONCLUSION.

For the foregoing reasons, it is respectfully urged that in

” the event the Court shall grant a petition for writ of cer-

tiorari in No. 834, this: petition for writ of certiorari should

‘likewise be granted.

Respectfully submitted,

' Ravwoun A. Brown,

-., + Irvine I. Voczrman,

| Attorneys for Cross-Petitioner,

Anthony Russo.

2,