Petition — Henderson v. Lewis
Supreme Court brief1977
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In THE
Supreme Court of the United States
OCTOBER, 1976- ———
aan -7¥ 1027
Rosert J. Henperson, Superintendent of Auburn
Correctional Facility, Auburn, New York,
Petitwner,
against
Aurrep Lewis,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
Louis J. LerxowitTz
Attorney General of the
State of New York
Attorney for Petitioner
Office & P.O. Address
Two World Trade Center
New York, New York 10047
Tel. No. (212) 488-3447
SamvueE. A. HirsHowi1rTz
First Assistant Attorney General
Davp L. Brrow
Assistant Attorney General
of Counsel
SL ET CE TT TE AST SET IEEE TES
le Os de
TABLE OF CONTENTS
PAGE
EE I nied 5 tained cass ahah sects nb ashe 1
EES SSS PP Oe Pe Neen er ee 2
Questions Presented ..... in bea iake oe eaae eae eae 2
NEO ET OR EEE 3
Reasons Why Certiorari Should Be Granted ....... 6
A. THE FIRST DECISION OF THE COURT OF APPEALS
ORDERING AN EVIDENTIARY HEARING OONFLICTS
WITH HOLDINGS OF THIS COURT .............. 6
B. THE COURT OF APPEALS’ FINDING THAT THE FACT
PATTERN ALLEGED CONSTITUTED A COERCED CON-
FESSION IS ERRONEOUS AND CONFLICTS WITH THE
VARIOUS DECISIONS OF THIS COURT DELINEATING
THE NATURE OF COERCED CONFESSIONS .......... 8
C. THIS COURT SHOULD FIND THAT THE INTRODUC-
TION OF RESPONDENT’S CONFESSION AT TRIAL, EVEN
IF COERCED, WAS HARMLESS ERROR ............ 9
es 5 3. So che eee hs Kh aes hee a Kha wdeeons 11
TABLE OF CasEs
Chapman v. California, 586 U.S. 18 (1967) ......... 10
Clewis v. Texas, 386 U.S. 707 (1967) .............. 8
Davis v. North Carolina, 384 U.S. 737 (1966) ...... 8
Haley v. Ohio, 382 U.S. 596 (1948) ................ 8,9
ii TABLE OF CONTENTS
PAGE
Harrington v. California, 395 U.S. 250 (1969) ...... 10
Haynes v. Washington, 373 U.S. 503 (1963) ....... 9
LaVallee v. Delle Rose, 410 U.S. 960 (1973) ........ 7
Lego v. Twomey, 404 U.S. 477 (1972) .........555-
Lynum v. Illinois, 372 US. 528 EE ins cai end
Milton v. Wainwright, 407 U.S. 371 (1972) .......... 10
Payne v. Arkansas, 356 U.S. 560 (1959) ........... 10
Rogers v. Richmond, 365 U.S. 534 (1961) .......... 10
Townsend v. Sair, 372 U.S. 293 (1968) ............ 7
Jnited States ex rel. Everett v. Murphy, 329 F. 2d
— §, Se | BPP PeTI oS ITT TL eee ee 9
Statutes Crrep
en, Se oe rc a ev cabeugnedss onheasn s EW 2
Lw THE
Supreme Court of the United States
OCTOBER, 1976
Raye Sore
sa
-
Rosert J. Henperson, Superintendent of Auburn
Correctional Facility, Auburn, New York,
Petitioner,
agatnst
AuFrrep Lewis,
Respondent.
,
vv
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
Petitioner, Robert J. Henderson, Superintendent of the
Auburn Correctional] Facility, Auburn, New York, prays
that a writ of certiorari issue to review two decisions of
the United States Court of Appeals for the Second Circuit
in the case of United States of America ex rel. Alfred
Lewis v. Robert J. Henderson, which were decided on June
4, 1975 and November 3, 1976.
Opinions Below
The first decision of the Court of Appeals which peti-
tioner seeks to review is reported at 520 F. 2d 896 (June 4,
1975) cert. den. 420 U.S. 998 (December 1, 1975).* The
* This petition was brought by respondent herein.
2
opinion of the Court of Appeals is reproduced as Appendix
A. The decision of the District Court which was affirmed
in part and reversed in part by the Court of Appeals is
unreported and set forth as Appendix B.
The second decision of the Court of Appeals, which peti-
tioner seeks to review was a summary affirmance, dated
November 3, 1976, of a memorandum decision and order of
the United States District Court for the Southern District
of New York dated July 16, 1976. The opinion of the Dis-
trict Court is reported at 421 F. Supp. 674. The decision of
the Court of Appeals is set forth as Appendix C and the
opinion of the District Court is set forth as Appendix D.
Jurisdiction
The jurisdiction of this Court rests on 28 U.S.C.
§ 1254(1). The second decision of the Court of Appeals was
handed down November 3, 1976.
Questions Presented mae
1. Did the decision of the Court of Appeals ordering an
evidentiary hearing conflict with holdings of this
Court?
2. Did the finding of the Court of Appeals that the fact
pattern alleged constituted a coerced confession con-
flict with the various decisions of this Court delineat-
ing the nature of coerced confessions?
3. Should this Court find that the introduction of re-
spondent’s confession, even if coerced, was harmless
error?
Statement of the Case
Respondent is on parole from a judgment of conviction
of the Bronx County Court, Bronx, New York, entered
after a trial by jury on November 25, 1958 for robbery in
the first degree, grand larceny in the first degree, and as-
sault in the second degree. He was sentenced by the court
(McCarrrey, J.) to a term of from 30 to 60 years. The con-
viction was affirmed by the Appellate Division, 10 A D 2d
924 (1st Dept., 1960), and leave to appeal to the Court of
Appeals was denied on July 15, 1960.
Respondent was arrested on the evening of February 17,
1958 on the complaint of a friend whom respondent had
threatened. Respondent was arraigned on February 19,
1958 and appeared in court approximately 21 times prior
to trial. Not until his third appearance in court, some 10
days after his confession, did he request a physical exami-
nation which was ordered by the court.
Respondent was committed for two psychiatric examina-
tions prior to trial. The reports were never introduced at
trial. Prior to trial, his attorney admitted that respond-
ent was competent to stand trial.
Respondent made various pro se motions throughout the
eight months prior to trial. Except for the time he re-
quested a physical examination, he made no mention of
any coercion.
At trial, seven eye-witnesses to the bank robbery and
assault testified. The jury also heard the testimony of
respondent’s friend, who made the original complaint to
the police, several detectives, and the doctor who had ex-
amined respondent after arrest. The robbery and assault
occurred in broad daylight. Respondent wore no disguise.
Respondent testified only on voir dire about the nature
of his confession. His testimony concerned only alleged
4
physical coercion and not any alleged mental coercion. Re-
spondent did not otherwise testify in his defense and called
no witnesses in his behalf.
An application for a writ of habeas corpus was denied on
November 10, 1969 (Sararrre, J.) and affirmed in 34 A D 2d
736 (1st Dept., 1970). Leave to appeal to the Court of Ap-
peals was denied on June 15, 1970.
A post-trial Huntley hearing was held by the Supreme
Court, Bronx County (McCarrrey, J.). The court found
respondent’s confessions voluntary in a decision dated
March 24, 1970. A copy of that decision is set forth as
Appendix E herein.
At the hearing, the State introduced the trial testimony
of two detectives and respondent’s voir dire testimony.
Respondent chose not to take the stand. His attorney
stated that respondent requested him to state that the
transcript relates “to all of the pertinent parts that have
to do with the voluntariness or involuntariness of his con-
fession”. Two alleged witnesses to respondent’s state
prior to the confession testified for the respondent. Re-
spondent presented no other direct evidence of mental or
physical coercion. In rebuttal, the State presented the tes-
timony of the two detectives who had testified at trial.
The Huntley court made extensive findings. It found
that the testimony of the detectives and doctor was credible
and that respondent’s was not. It found that one or the
other of the two detectives who had testified was with re-
spondent almost the entire time between arrest and the giv-
ing of the confession and that respondent was not beaten.
Even though the court’s final statement was phrased in
terms of physical coercion, the court made findings rele-
vant to respondent’s claim of mental coercion. The court
found that respondent was accompanied by a friend when
he went with the detectives to retrieve the money, that the
detectives did not make any threats or molest respondent
5
in any way, and that the respondent appeared to be in
good mental and physical condition when he was trans-
ferred from one stationhouse to another, which was shortly
before he confessed.
The decision was affirmed by the Appellate Division,
35 A D 2d 1086 (ist Dept., 1970). Leave to appeal to
the Court of Appeals was denied on December 15, 1970.
An application for a Huntley re-hearing was denied by
the Supreme Court, Bronx County (McCarrrey, J.) in a
decision dated March 15, 1973. Leave to appeal to the
Appellate Division was denied on May 8, 1973.
Respondent first petitioned the federal courts for a writ
of habeas corpus by application to the United States Dis-
trict Court for the Western District of New York. In
an unreported decision (1970-322) dated June 28, 1971,
the court (Curtin, J.), after a study of the trial record,
the record of the Huntley hearing and the briefs and
other records of trial and appeal, found that petitioner’s
confession was made voluntarily. The United States
Court of Appeals for the Second Circuit denied a cer-
tificate of probable cause on May 1, 1972. This Court
denied certiorari, 409 U.S. 1045 (December 4, 1972).
The instant application was brought in the United
States District Court for the Northern District of New
York. The Court (Port, J.) in an unreported decision,
Appendix B hereto, without requesting a return from the
State, found inter alia, that the respondent’s confession
was neither mentally nor physically coerced.
The United States Court of Appeals for the Second
Circuit, Appendix A hereto, found that the respondent
was precluded from alleging that his confession was the
product of physical coercion, since that issue had been
thoroughly considered by the state court. However, the
court found that the Huntley court had not considered
whether respondent’s confession was the product of mental
6
coercion and held that if the respondent could prove cer-
tain facts, at an evidentiary hearing then his confession
would be deemed the product of mental coercion.*
The Court of Appeals found that respondent’s confes-
sion would be deemed the product of mental coercion.
because of six sets of allegations:
(a) youth and limited education;
(b) an arrest in questionable circumstances;
(c) all night questioning;
(d) denial of sleep and food;
(e) deception by false promises of help and
(f) deprivation of the support of counsel and friends.
On remand, the District Court, in an opinion set forth
as Appendix D found that the respondent’s confession
was the product of mental coercion. The Court of Ap-
peals affirmed on the opinion of the District Court, see
Appendix C hereto. 4
Reasons Why Certiorari Should Be Granted
A.
The first decision of the Court of Appeals
ordering an evidentiary hearing conflicts with
holdings of this Court
Since respondent had received a full and fair hearing
on the nature of his confession in state court, and that
court found that his confession was voluntary, the order.
of the Court of Appeals for an evidentiary hearing con-
* This Court denied Lewis’ petition for certiorari 423
which was based on the theory that his confession ‘was obriowk
involuntary and thus no evidentiary hearing was required.
oe te eee a -
7
flicts with Townsend v. Sain, 372 U.S. 293 (1963) and
LaVallee v. Delle Rose, 410 U.S. 960 (1973). This is
another illustration of the apparent disinclination of the
Cireuit Court to be bound by the doctrine pointed out in
the Delle Rose case resulting in the present case of an old
conviction being set aside upon doctrinal considerations
having no merit.
Justice McCaffrey, in his decision after the post-trial
Huntley hearing, found that respondent’s confession was
made voluntarily and was not physically coerced. Specific
findings relevant to mental coercion were made. Respond-
ent’s attorney had explicitly argued the issue of mental
coercion at the close of his argument. The testimony at
the Huntley hearing and at the trial testimony intro-
duced at that hearing demonstrates that respondent’s con-
fession was, at the least, voluntary by a preponderance
of the evidence. See, Lego v. Twomey, 404 U.S. 477 (1972).
It is clear from state trial and Huntley hearing records
that respondent confessed only when he was confronted
with the fact that he could be indentified as to the gap
between his front teeth and that one detective knew the
words he used during the robbery. Respondent was no
stranger to the criminal courts: he had a prior conviction
for robbery in the second degree.
It must be assumed that the court, after the Huntley
hearing, would have found respondent’s confession invol-
untary had it believed respondent’s allegations, LaVallec
v. Delle Rose, supra. Respondent’s attorney did raise the
issue of mental coercion at the hearing. Although the
court, in its decision after the hearing, did not present
an exegis of constitutional law, it must be presumed that
the correct standards of federal law were applied to the
facts, since it decided the confession was voluntary. Re-
spondent refused to testify at the Huntley hearing al-
though provided an opportunity. He should not have been
permitted to so testify at a federal hearing.
8
B.
The finding of the Court of Appeals that the
fact pattern alleged constituted a coerced
confession is erroneous and conflicts with the
various decisions of this Court delineating the
nature of coerced confessions
Respondent at the time of his arrest was twenty-two
years old with a 9th grade education. Haley v. Ohio, 332
U.S. 596 (1948), cited by the court below, as a factor in the
“totality of circumstances” equation is inapposite since
Haley was a fifteen year old and this Court pointedly
stated that the “tender age” of Haley was the significant
factor.
Neither is there any indication of a person of immature
mental age unlike Davis in Davis v. North Carolina, 384
U.S. 737 (1966) who was “an impoverished negro with a
third or fourth grade education” whose low level of intelli-
gence was specifically noted and commented upon even by
the State trial court (id. at 742). Respondent was, accord-
ing to a contemporaneous psychiatric report, of average
intelligence and had a serious prior experience with the
police. Contrast with Clewis v. Texas, 386 U.S. 707, 712
(1967).
Unlike Clewis v. Texas, supra, where the first incriminat-
ing statement “was secured following an initial taking into
custody which was concededly not supported by probable
cause’ (id. at 711), respondent here was clearly arrested
on a valid charge.
Unlike Clewis v. Texas, supra, there was nothing like the
prolonged “stream of events” (id. at 710) of some nine
days, indicating as this Court observed there, the inter-
rogation (unlike the instant one) “was not intended merely
to secure information, but was specifically designed to
elicit a signed statement of ‘the truth’” i.e., “the police
view of the truth” (id. at 711-12).
9
The testimony at the Huntley hearing indicated that re-
spondent was free to sleep the night after arrest and prior
to the confession, if he desired. He admitted at the hearing
before the United States District Court that he made no
request for food and the additional testimony shows he
was offered food but refused it.
The quality of the evidence with respect to deception by
alleged false promises of help does not preponderate in
favor of such allegations. The facts in the instant case
pale in comparison with those in Lynum v. Illinois, 372
U.S. 528 (1963) or the gruesome and macabre deception in
United States ex rel. Everett v. Murphy, 329 F. 2d 68 (2d
- Cir. 1964) which dramatize the flimsiness of respondent’s
alleged claim of deception.
The finding of the courts below that respondent was help-
lessly isolated from friends and counsel also conflicts with
the classic cases of this Court such as Haynes v. Washing-
ton, 373 U.S. 503 (1963) and Haley v. Ohto, supra.
The finding of the court below that the facts as alleged
by respondent demonstrate the existence of a confession
that was the product of mental coercion clearly conflicts
with a long history of decisions of this Court.*
C.
This Court should find that the introduction
of respondent’s confession at trial, even if
coerced, was harmless error
N »twithstanding prior holdings of this Court that where
a coerced confession was introduced at trial, the error could
*In any event, respondent testified at the federal evidentiary
hearing that he confessed because of the alleged beatings, an issue
that the Court of Appeals found precluded by the Hun hear-
ing. Respondent has never satisfactorily explained the rep-
ancy between this testimony and the finding of the Court of Ap-
peals that his confession was not the product of physical coer-
ion.
10
not be harmless, e.g. Rogers v. Richmond, 365 U.S. 534
(1961); Payne v. Arkansas, 356 U.S. 560 (1959) ; see Chap-
man v. California, 386 U.S. 18 (1967), this Court has re-
treated from that absolute position in Milton v. Wain-
wright, 407 U.S. 371 (1972).
In Milton, supra, the State introduced a confession ob-
tained by a police officer who posed as a fellow prisoner
and was confined in the cell with the respondent. Accord-
ing to the dissent, it took thirty-six hours of prodding to
induce the respondent to talk. The respondent was repre-
sented by counsel. This Court found that the introduction
of the confession was harmless beyond a reasonable doubt
citing Chapman, swpra and Harrington v. California, 395
U.S. 250 (1969).
Milton, supra, is significant because it moves away from
the holding of Chapman, supra, that some constitutional er-
rors are so egregious as to warrant automatic reversal no
matter what the weight of other evidence. Chapman, supra
entailed a two part test: First, the court looked to the na-
ture of the constitutional error. Only if it wefe not of a
particular class, e.g., a coerced confession, would it con-
tinue to the second stage where the court weighed the other
evidence against the accused.
Milton, swpra must be seen as an abandonment of that
two-part test in favor of a single test. Under Milton, supra,
even where the alleged error is a coerced confession, the
court should apply only the second part of the Chapman
‘est: The measuring of the weight of the other evidence.
Here, seven eye-witnesses to the robbery and assault
positively identified the respondent. The District Court,
see Appendix D, found that the “in-court identifications
did not violate due process and taint [respondent’s]
conviction”. Note 19. No defense was offered at trial.
A Ee ee re eee ee
Oe
11
This case stands squarely for the proposition that the
introduction of a confession at trial, even if alleged to be
coerced, can be harmless error beyond a reasonable doubt.
Dated. New York, New York, January 24, 1977.
CONCLUSION
Petitioner’s application for certiorari should be
and the decision of the Court of Appeals sum-
marily reversed or plenary review granted.
Dated: New York, New York, January 24, 1977.
Respectfully submitted,
Louis J. LEFKOWwITZ
Attorney General of the
State of New York
Attorney for Petitioner
SamvuE. A. HirsHowITz
First Assistant Attorney General
Davi L. Brac
Assistant Attorney General
of Counsel
_
+ eT
la
Appendix A.
UNITED STATES of America ex rel. Alfred LEWIS,
Petitioner-Appellant,
Vv.
Robert J. HENDERSON, Superintendent of Auburn
Correctional Facility, Respondent-Appellee.
No. 819, Docket 74-2655.
United States Court of Appeals,
Second Circuit.
Argued April 1, 1975.
Decided June 4, 1975.
State prisoner filed a petition for a writ of habeas
corpus wherein he alleged that he was imprisoned on
basis of state bank robbery conviction which was un-
constitutionally obtained. The United States District
Court for the Northern District of New York, Edmund
Port, J., entered an order which denied the petition, and
petitioner appealed. The Court of Appeals, Mansfield,
Cireuit Judge, held that allegation that defendant was
young, of limited education, arrested in questionable cir-
cumstances, questioned all night, denied sleep and food,
deceived by false promises of help and completely de-
prived of the support of counsel or friends until he con-
fessed, alleged factors which, if proved, would establish
that defendant’s confession was obtained under circum-
stances of mental coercion in violation of due process.
Affirmed in part, reversed in part and remanded.
Lawrence Stern, Brooklyn, N.Y., for petitioner-appel-
lant.
David L. Birch, Deputy Asst. Atty. Gen. (Louis J. Lef-
kowitz, Atty. Gen., of the State of New York, Irving Galt,
2a
Appendix A.
Asst. Atty. Gen., New York City, of counsel), for respond-
ent-appellee.
Before Anperson, MansFietp and Oakes, Circuit
Judges.
MansFIELD, Circuit Judge:
Alfred Lewis, a state prisoner serving a term of 30 to 60
years for bank robbery,’ appeals from an unreported deci-
sion and order of the United States District Court for the
Northern District of New York, Edmund Port, Judge,
denying his petition for a writ of habeas corpus. Lewis
alleged, inter alia, that his conviction was obtained through
the use of his physically and mentally coerced confession
and that state determinations of the voluntariness of his
confession were factually and procedurally deficient. The
district court denied his petition without a hearing on the
ground that the state had accorded him a full and fair
post-trial hearing on voluntariness and that the’ state hear-
ing judge’s determination of voluntariness was adequately
supported by the record and the law. While we agree that
the state court determination adequately determined vol-
untariness so far as physical coercion is concerned and we
affirm as to that issue, we reverse and remand as to the
claim of mental and psychological coercion because that
allegation has never been sufficiently developed and passed
upon by either a state or federal court.
Just after noon, on February 6, 1958, a bank at 155th
Street and Third Avenue, Bronx, New York, was robbed of
$12,000 by a lone gunman. Eleven days later, on Febru-
* At the time when this appeal was heard Lewis had been trans-
ferred to the West Street Detention Center, a federal prison in
Manhattan, to await trial on federal bank robbery charges. The
charges stemmed from his alleged robbery of a bank while he was
out of prison for a short period of time in order to look for a job
in anticipation of being paroled from state prison.
3a
Appendix A.
ary 17, at approximately 8:30 P.M., petitioner, then a
22-year old black man with a 9th grade education was ar-
rested in the lobby of an apartment building in Manhattan.
According to police testimony given at the robbery trial
and questioned by Lewis, he was arrested on the complaint
of a Mrs. Elizabeth Waller, a resident of the apartment
building. She had earlier related to the police that peti-
tioner, on February 8 or 10, had left a briefcase containing
a large sum of money in her apartment. When he returned
for it on February 16 he told Mrs. Waller that $1,700 was
missing and that he would return for it, an apparent threat
which prompted Mrs. Waller to go to the police.
Upon arrest Lewis was immediately taken to the 30th
Precinct headquarters where he was kept overnight until
about noon of the next day, February 18. He was not
booked on any charges and was not arraigned before a
Magistrate on that night or the next morning.
The events at the 30th Precinct are in dispute. Peti-
tioner testified on voir dire at his trial that from the time
he arrived at the police station until the next morning he
was subjected to interrogation and beatings by police offi-
cers, was not given any food and was denied the opportu-
nity to sleep. The interrogation, he testified, related to the
Bronx bank robbery, not Mrs. Waller’s complaint, and
petitioner was urged to confess and disclose the location
of the robbery proceeds. The testimony of police officers
present at the 30th Precinct during most of Lewis’ stay
there flatly contradicted his allegations of beatings. Other
aspects of Lewis’ story are corroborated or uncontradicted,
however. The police witnesses agreed that Lewis was in-
terrogated intermittently at the 30th Precinct throughout
the night about the Bronx robbery. None of them knew
whether petitioner had been given any food or allowed to
sleep in the short intervals between interrogation sessions.
Finally, a lineup and various showups were apparently
=
4a
Appendia A.
held during the night and the next morning, with several
witnesses to the robbery identifying petitioner as the per-
petrator.
At about noon on February 18 petitioner was taken by
several detectives to the 42d Precinct headquarters in the
Bronx, near the scene of the robbery. He claims that he
was again subjected to interrogation and beatings and had
still neither been given food nor allowed to sleep. Again
the police denied the allegations of beatings, agreed that
the interrogations took place, but did not know whether
petitioner had been allowed to eat or sleep. During this
period the police tried to convince Lewis to cooperate by
promising to drop criminal charges pending in another
jurisdiction and to accept his claim that the money in the
briefcase was gambling winnings, if he would agree to lead
them to the money.
Lewis finally gave in at about 2:00 P.M. on February 18
and, in the company of a friend, led the police to the money.
Shortly after his return to the 42d Precinct, at about 3:30
P.M., he confessed after further promises of help from the
police in the disposition of his case. The confession was
repeated in the presence of more detectives and given a
third time to an Assistant District Attorney and a ste-
nographer.
On the night of February 18 Lewis was held at the 42d
Precinct in a detention cage. He tried to sleep on the floor
and had only some candy bars to eat, which a uniformed
officer had brought at his request. The next morning he
had a bowl] of soup and was finally arraigned at 10:00 A.M.
on February 19 on bank robbery charges. There was no
police testimony to contradict his description of this aspect
of his confinement.
It is uncontested that not once during his 38 hours of
detention by the police was Lewis ever advised of his right
to remain silent or of his right to counsel. In addition, he
5a
Appendia A.
was at no time allowed to see or speak to anyone but the
police, except during the expedition to retrieve the money.
Petitioner’s trial began on October 6, 1958. Copies of
his confession were introduced into evidence in the face of
his objection that it was both false and the product of il-
legal coercion. Pursuant to the procedure in use in New
York at that time both of these issues were left for the
jury to resolve on the basis of the evidence and the law.
Lewis, along with several police officers, testified on voir
dire to their respective versions of the facts as related
above. He was found guilty of the robbery and sentenced
to 30-60 years imprisonment. The Appellate Division af-
firmed without opinion, People v. Lewis, 10 A.D.2d 924, 202
N.Y.S.2d 1001 (1st Dept. 1960), and leave to appeal to the
Court of Appeals was denied.
Pursuant to a pro se coram nobis petition filed by Lewis
in the state court, a Huntley hearing’ was held in January
1970 by Justice Edward T. McCaffrey, who had presided
at the original trial, to determine whether the confession
was the result of illegal coercion. At the outset of the
hearing Lewis, speaking for himself, asked the court to
consider and determine “whether defendant’s constitutional
rights were violated when the Court at Page 667 of the
trial record’ refused defendant’s request to charge the jury,
2 Held pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.
2d 838, 204 N.E.2d 179 (1965), New York State’s procedural re-
sponse to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.
2d 908 (1964).
* The trial record reveals the following request of Lewis’ trial
counsel and the trial judge’s ruling:
“Mr. Kunstler: And seco , your Honor, that the jury
may take into consideration in determining whether the con-
fession was coerced or not the mental condition of the defend-
ant and the length of time he was held by the police prior to
his arraignment.
(footnote continued on following page )
6a
Appendiz A.
that it must disregard the confession if it found it to have
resulted from mental or psychological pressure and ex-
pressly limit [sic] the jury to consideration of physical
pressure deciding whether it should accept, or disregard the
confession, as per the original coram nobis petition veri-
fied August 11, 1969, and the defendant’s traverse, con-
nected therewith verified September 8th, 1969, since in view
of what has just been said, the jury has not properly
passed upon the question of voluntariness as indicated, in
People versus Huntley, 15 N.Y. 2nd Series, at Page 78.”
(Hearing Minutes 21-22). This request was thereupon
denied by Justice McCaffrey. The evidence consisted of
the transcript of the original trial testimony concerning the
circumstances surrounding the confession, augmented by
testimony of two new witnesses corroborating petitioner’s
claim of beatings and by further police testimony con-
tradicting the beatings claim. The hearing record reveals
that this evidence was introduced in an effort, notwith-
standing Justice McCaffrey’s earlier denial of+Lewis’ mo-
tion attacking the confession on grounds of mental coercion,
to prove such coercion. Counsel for Lewis argued to the
court that the circumstances surounding the obtaining of
the confession were “inherently coercive” (Hearing Minutes
89) and the district attorney responded “[s]o certainly,
we can’t say that any interrogation that took place the
night before so affected his mind, that he could not. . .
that his subsequent confession was involuntary.” (Jd. at
92). In an opinion dated March 24, 1970, which sum-
marized in narrative form the evidence received by him,
(footnote continued from preceding page)
“The Court: The Court will charge that in deciding
whether the defendant was coerced into confessing, the jury
may take into consideration the length of time in which he
was held by the police prior to arraignment and any physical
pressure applied to him. You have an exception as to my
omitting the mental or psychological.” (Trial Minutes 667).
7a
Appendia A.
Justice McCaffrey concluded that the confession was “vol-
untarily made’’ and “not the result of physical coercion of
any kind.” The decision was affirmed on appeal without
opinion, People v. Lewis, 35 A.D.2d 1086, 316 N.Y.S.2d 191
(1st Dept. 1970), and leave to appeal to the Court of Ap-
peals was denied.‘
Lewis filed a pro se habeas corpus petition in the West-
ern District of New York, received on May 6, 1970, again
attacking the voluntariness of his confession on grounds of
physical and mental coercion. This was denied by Judge
Curtin on June 28, 1971, on the ground that the Huntley
hearing had adequately and fairly determined the issues
as to voluntariness. A certificate of probable cause for an
appeal was denied by both Judge Curtin and this Court
and certiorari was denied by the Supreme Court.
Undaunted, petitioner filed this habeas corpus petition
pro se in the Northern District of New York, received on
July 17, 1974, raising, inter alia, the voluntariness issue
again along with the adequacy of the state court proceed-
ings. Judge Port denied the petition essentially on the
basis of the earlier decisions of Judge Curtin and Justice
McCaffrey. We granted a certificate of probable cause
permitting the instant appeal and permitted assignment of
counsel.
DISCUSSION
Putting aside the claim of physical abuse for the mo-
ment, the first question to be resolved on this appeal is
whether the facts alleged by Lewis, if proven, would make
*In view of these extensive state p ings which presented
all of the issues raised on this appeal to the New York
State court, the state could not, and does not, contend that peti-
tioner Lewis has failed to exhaust his state remedies. ram 08
United States ex rel. Ross v. LaVallee, 448 F.2d 552 (2d .
1971). -
8a
Appendiz A.
out a case of unconstitutional mental coercion. Over the
years the Supreme Court has created various formulations
of the standard governing the admissibility of confessions
under the Due Process Clause of the Fourteenth Amend-
ment. Generally, if a defendant’s “will was overborne,”
Reck v. Pate, 367 U.S. 433, 440, 81 S.Ct. 1541, 6 L.Ed.2d
948 (1961), or if the confession was not “the product of a
rational intellect and a free will,” Blackburn v. Alabama,
361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960),
it must be excluded from the evidence at trial on the ground
that it was impermissibly coerced. Such general stand-
ards have been of but limited utility, however, when one
is called upon in a particular case to decide whether, in
“(t}he totality of the circumstances that preceded the [con-
fession],” Fikes v. Alabama, 352 U.S. 191, 197, 77 S.Ct.
281, 284, 1 L.Ed.2d 246 (1957), a particular suspect was
forced to confess against his will.
[1] Fortunately there are now a significant number of
Supreme Court decisions which go beyond general expres-
sions of standards and explicate particular factors or
groups of factors which, when included in the totality of
circumstances, require that a resulting confession be in-
validated on grounds of coercion. Applying these stand-
ards, petitioner alleges facts which would, if established,
mandate a finding that his confession was obtained in vio-
lation of his Due Process rights. For present purposes the
significant allegations made by him are the following:
(1) He was never once, during the whole period of pre-
arraignment interrogation, advised of his right to remain
silent or of his right to counsel. Although this is a
pre-Miranda case, this failure on the part of police in a
particular case has long been recognized as significant
in the caleulus of coercion. Davis v. North Carolina, 384
U.S. 737, 740-41, 86 S.Ct. 1344, 16 L.Ed.2d 360 (1966);
9a
Appendia A.
Culombe v. Connecticut, 367 U.S. 568, 609-10, oi S.Ct.
1860, 6 L.Ed.2d 1037 (1961).
(2) According to Lewis he was arrested on the pretense
of Mrs. Waller’s alleged complaint, held for approxi-
mately 38 hours by the police during which time he was
neither booked nor arraigned, and questioned during
most of the first half of this period. Extremely long
periods of confinement coupled with successive periods
of questioning, such as occurred here, usually tend to
pressure a defendant into saying what the police want in
order to stop the steady pressure. Clewis v. Texas, 386
U.S. 707, 711-12, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967).
(3) During his extended period of detention before and
after confession, Lewis was not allowed to make any
telephone calls, was not allowed to see anyone and, with
one minor exception, saw and spoke to no one but the
police. This sort of isolation denies a defendant psy-
chological support from friends, relatives and counsel,
putting him at an extreme disadvantage when confronting
the police. Haynes v. Washington, 373 U.S. 503, 511,
83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Haley v. Ohio, 332
U.S. 596, 599-601, 68 S.Ct. 302, 92 L.Ed. 224 (1948).
(4) Lewis was continuously interrogated throughout the
night of February 17 and on into February 18 on an inter-
mittent basis without being given any real opportunity
to sleep or any substantial food. The debilitating effect
of such treatment on a defendant’s will and mind has
long been recognized by the Supreme Court. Payne v.
Arkansas, 356 U.S. 560, 567, 78 S.Ct. 844, 2 L.Ed.2d 975
(1958); see Clewis v. Texas, supra, 386 U.S. at 712, 87
S.Ct. 1338.
(5) Lewis, at the time of his confession, was a young
22-year old black man of limited education with apparently
little prior experience with police methods, thus render-
10a
Appendiz A.
ing him particularly susceptible to police pressure. Haley
v. Ohio, supra, 332 U.S. at 599-601, 68 S.Ct. 302; see
Davis vy. North Carolina, supra, 384 U.S. at 742, 86 S.Ct.
1344.
(6) The police detectives made various promises to
petitioner, including an offer to ‘‘help” him with his
case if he confessed and a pledge that his claim of owner-
ship would not be challenged if he would only retrieve
the money. Furthermore, his agreement to retrieve the
money and his confession followed soon after these false
promises, underscoring their effect upon his wili. Lynuwmn
v. Illmois, 372 U.S. 528, 531-35, 83 S.Ct. 817, 9 L.E.2d
922 (1963); United States ex rel. Everett v. Murphy, 329
F.2d 68 (2d Cir.), cert. denied, 377 U.S. 967, 84 S.Ct. 1648,
12 L.Ed.2d 737 (1964); see Bram v. United States, 168
U.S. 532, 542-43, 18 S.Ct. 183, 42 L.Ed. 568 (1897).
[2] Of particular relevance here are the Supreme
Court’s decisions in Haynes v. Washington, supra, and
Haley v. Ohio, supra. The defendant in Haynes was held
incommunicado for 16 hours while the police questioned
him until he confessed. He was not advised of any of
his rights and the circumstances of his confinement im-
plied that he would be allowed to see no one until he
confessed. In Haley the defendant was a young boy who
was arrested at midnight and questioned all night without
benefit of counsel or of a friend to advise him. He
finally confessed five hours later when confronted with
the alleged confessions of his alleged accomplices. Al-
though not all of the factors of Haynes or Haley (or of
any other case for that matter) are present here, the
same type of techniques designed to overbear the defend-
ant’s will were allegedly used. Defendant is described
as young, of limited education, arrested in questionable
circumstances, questioned al] night, denied sleep and food,
deceived by false promises of help and completely de-
lla
Appendiaz A.
prived of the support of counsel or friends until he
confessed. Here, as in many similar cases, e. g., United
States ex rel. Weinstein v. Fay, 333 F.2d 815 (2d Cir.
1964); United States ex rel. Williams v. Fay, 323 F.2d
65 (2d Cir. 1963), cert. denied, 381 U.S. 945, 85 S.Ct. 1788,
14 L.Ed.2d 709 (1965); United States ex rel. Caminito v.
Murphy, 222 F.2d 698 (2d Cir.), cert. denied, 350 U.S.
896, 76 S.Ct. 155, 100 L.Ed. 788 (1955), we cannot avoid
the conclusion that these facts, if proved, would establish
that Lewis’ confession was obtained in ircumstances
which overcame his will. Its use against him at his trial
would therefore violate his Due Process rights. Reck v.
Pate, swpra.
(3] Since we find that Lewis has alleged mental co-
ercion amounting to a deprivation of Due Process we must
determine whether, under Townsend v. Sain, 372 U.S. 293,
310-19, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and 28 U.S.C.
§ 2254(d),° the district court was required to hold a hear-
ing on his factual contentions, see Procunier v. Atchley,
400 U.S. 446, 451-52, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971).
Such a hearing is, of course, required if the state eviden-
tiary hearing failed to resolve the merits of the factual
dispute or was not ‘‘full and fair.’’ Townsend vy. Sai,
supra, 372 U.S. at 313, 83 S.Ct. 745.
[4] There is no question here that a state evidentiary
hearing was held on the issue of voluntariness and that
the decision was adverse to petitioner. We must still de-
cide, however, whether that hearing resolved the merits
of the claim of mental coercion and was ‘‘full and fair.’’
It is petitioner’s contention that the state Huntley hear-
598 U.S.C. § 2254(d) is treated in this Circuit as, in essence,
a codification of the hearing criteria of Townsend v. Sain, supra.
a gy ex rel. Hughes v. McMann, 405 F.2d 773, 776 (2d
Cir. ).
12a
Appendia A.
ing was fatally deficient becanse of the court’s failure to
pass upon his claims of mental and psychological coercion.
The Huntley hearing judge poncluded in his opinion that
Lewis’ confession was “voluntarily made’’ and ‘‘not the
result of physical coercion of] any kind.’’ (Emphasis sup-
plied) There was no conclusion specifically addressed to
mental coercion. The opinion itself contains no explicit
findings of fact. It simply recounts the relevant testi-
mony, emphasizing portions/ dealing with physical abuse,
based on the transcript of the original trial and the tes-
timony of live witnesses af the hearing. The only hint
of the judge’s view of the) facts is his observation con-
cerning the credibility of Lewis and the two witnesses
called by him and discrepancies in the tales recounted
by each. The opinion makes no attempt to resolve these
discrepancies, however.
Clearly, the hearing judge did not believe Lewis’ alle-
gations of physical abuse. , This is the only conclusion that
can be drawn from his stafement that no physical coercion
was used. On the other/hand, the opinion is silent as
to mental coercion. The bald statement that the confes-
sion was ‘‘voluntarily made’’ might, standing alone, mean
that the allegations concerning mental coercion were not
believed. However, wheh considered in the context of
the earlier trial and of |the later Huntley hearing it is
clear that Justice McCaffrey did not believe that the alle-
gations of mental coercion made out a constitutional vio-
lation and that he accordingly was not giving them con-
sideration. At Lewis’ original trial he had erroneously
refused to instruct the jury that Lewis’ ‘‘mental condition’’
should be considered by! it in determining the voluntari-
ness of the confession.’ Instead he charged that the
* Lewis also attacked, without success, this apparently errone-
ous jury instruction in st collateral proceedings and in the
pro se habeas corpus petition filed in this case. On this appeal
the issue is not raised and need not be considered in light of our
disposition of the case. |
13a
Appendia A.
length of time in police custody before arraignment and
physical abuse were the relevant factors to be considered
by the jury, granting ‘‘an exception as to my omitting
the mental or psychological.’’ There is no indication in
his Huntley opinion that either his view of the law had
changed or that mental coercion was actually considered.
On the contrary, at the outset of the Huntley hearing he
denied Lewis’ motion to expand the hearing to reconsider
his earlier ruling that the jury should not be instructed
that it ‘‘must disregard the confession if it found it to
have resulted from mental or psychological pressure,”’
thus reaffirming his view limiting ‘‘the jury to a con-
sideration of physical pressure.’’ This view is confirmed
by his emphasis in his Huntley hearing opinion upon evi-
dence with respect to physical abuse in the recited testi-
mony, which makes up the bulk of the opinion, to the
exclusion of evidence indicating mental coercion. Viewing
the record as a whole we conclude that the state judge found
the confession to be voluntary because he disbelieved the
allegations of physical abuse while ignoring the allegations
going to mental coercion. The finding of voluntariness
thus cannot be said to have resolved any of the factual
disputes noted above as to mental coercion or even reached
a decision on that issue. Cunningham v. Heinze, 352 F.2d
1, 3-4 (9th Cir. 1965), cert. denied, 383 U.S. 968, 86 S.Ct.
1274, 16 L.Ed.2d 309 (1966) ; United States ex rel. Kenney
v. Fay, 232 F.Supp. 899 (S.D.N.Y. 1964).’
*™This case may be favorably contrasted to LaVallee v. Delle
Rose, 410 US. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973) (per
curiam), in which the Supreme Court reversed a decision of this
court upholding a hearing on a habeas corpus petition because of
an inability to determine whether the state court, after a Huntley
hearing, had found the confession voluntary because of an er-
roneous ‘view of the law or because of a resolution of factual
issues against the petitioner. The Court concluded that under
(footnote continued on following page)
l4a
Appendia A.
This case then falls into the first category of cases in
which an evidentiary hearing must be held by the district
court under Townsend v. Sain, supra, 372 U.S. at 313-16,
83 S.Ct. 745, and 28 U.S.C. § 2254(d). That is, the merits
of the factual dispute surrounding the existence of mental
coercion were not resolved in the state hearing. No
specific factual findings were made and the federal court
cannot reconstruct the state findings, if any, because there
is a strong indication that a portion of the applicable
constitutional doctrine was misapplied or ignored. Jd.
(5, 6] Turning to the allegations of physical abuse, the
situation is wholly different. The Huntley judge certainly
considered this issue both at the original trial and at the
later hearing. His opinion recounted all of the testimony
on the issue of physical abuse and specifically concluded
that the confession did not result from such treatment.
We cannot assume from the Huntley hearing opinion and
the record on this appeal that the Huntley judge applied
(footnote continued from preceding page)
all of the circumstances the federal courts could be reasonably cer-
tain that the correct standard had been applied and that no federal
hearing was necessary or proper. Although the state court had
made no specific findings of fact, there was no evidence that the
wrong standard had been utilized and the determination was
made on the “totality of the circumstances” with the proper factors
apparently considered,
Here, by way of contrast, the state judge did not indicate in
any way in his Huntley opinion that his earlier erroneous view
of the law had changed since 1958. He recounted all of the tes-
timony before him with emphasis on the allegations and denials
of physical abuse but with no reference to mental coercion. He
— wee omy - petitioner’s witnesses, but their testi-
mony only related to the allegations of sical beati i
he expressly concluded only that the ‘aa oe wr
result of “physical” coercion. In contrast to Delle Rose, there
is no indication here that the correct law was applied. However
there is significant evidence that an important doctrine of law
was simply ignored.
15a
Appendiz A.
the incorrect constitutional standards to this issue, see
LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35
L.Ed.2d 637 (1973) (per curiam). Nor can we say, after
an examination of the record, including the Huntley hear-
ing transcripts, that the state factual determination is
not fairly supported by the record as a whole or that there
are any other defects in the state court proceedings.
[7] Although not an issue specifically raised by the
state, we are satisfied that the denial of Lewis’ previous
application for habeas corpus relief in the federal courts
cannot bar consideration of the instant petition. The pre-
vious denial could only constitute a bar if: (1) the grounds
for relief in the present application were determined ad-
versely to Lewis in the prior application, (2) the prior
determination was on the merits and (3) the ends of jus-
tice would not be served by reaching the merits of this
application. Sanders v. United States, 373 U.S. 1, 15, 83
S.Ct. 1068, 10 L.Ed.2d 148 (1963). There is no question
that the claims presented in the present application were
also presented in the prior one. However, as we have
shown, Lewis’ allegations concerning mental or psycholog-
ical coercion raise issues of fact that were not resolved
and probably not even considered by the state court. The
prior adjudication of the district court on Lewis’ first pro
se petition® appears to have ignored these issues also. The
district court did not mention them and Judge Curtin
simply concluded that the confession was “not the result
® It has been suggested that if the prior application was denied
without appointment of counsel any subsequent application must
be considered on its own merits and not summarily denied on the
basis of the previous denial. Tucker v. United States, 138 U.S.
App.D.C. 345, 427 F.2d 615, 617-18 n.13 (1970). We do not ex-
plicitly rest our decision on that ground, although lack of counsel
may explain why the district court was apparently unaware of
the mental coercion claim in the prior appli
16a
Appendiz A.
of physical coercion of any kind.” In these circumstances
a decision without a hearing, much less any mention of
the mental coercion issue, is not on the merits and cannot
bar consideration of the instant petition. Jd. at 16, 83
S.Ct. 1068; see Saville v. United States, 451 F.2d 649, 650
(1st Cir. 1971).
[8] Since a state court conviction tainted by an in-
voluntary confession cannot stand under the Due Process
Clause, Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774,
12 L.Ed.2d 908 (1964) ; Payne v. Arkansas, supra, 356 U.S.
at 567-68, 78 S.Ct. 844, the decision below is reversed as to
the issue of mental and psychological coercion and the
case is remanded to the district court for a hearing to
resolve the factual disputes surrounding that issue.
17a
Appendix B.
UNITED STATES DISTRICT COURT
NorrHern District or New York
74-CV-
-
_
U. S. ex rel. ALrrep Lewis,
Petitioner,
vs.
Roxsert J. Henperson, Superintendent of Auburn
Correctional Facility,
Respondent.
,%
—
Epmvunp Port, Judge
Memorandum—Decision and Order
The Clerk of the court has sent to me for my considera-
tion a petition for a writ of habeas corpus together with
an affidavit in forma pauperis from an inmate now confined
in the Clinton Correctional Facility, Dannemora, New
York. The inmate was confined in the Auburn Correctional
Facility when he sent the petition to the Clerk of the court.
The petition is accompanied by a 27 page brief prepared
by the Cornell Legal Assistance Project for the Auburn
Correctional Facility.
The petitioner was convicted in the Bronx County Court,
after a jury trial in 1958, of the crimes of Robbery Ist
degree, Grand Larceny 1st degree, and Assault 2nd degree,
and sentenced to three consecutive terms totaling 30-60
years imprisonment. The conviction was affirmed on direct
appeal,’ and the Court of Appeals denied leave to appeal
1 People v. Lewis, 10 A.D.2d 924 (1st Dept. 1960).
18a
Appendix B.
on July 15, 1960. A post-trial “Huntley” hearing was held
in the Bronx County Supreme Court, and found certain of
petitioner’s confessions to have been voluntary by a deci-
sion dated March 24, 1970. The Appellate Division affirmed
this determination,’ and the Court of Appeals denied leave
to appeal.
The petitioner has had quite a number of collateral pro-
ceedings in both the state and federal courts over the years
since his conviction, including the denial of a federal peti-
tion for habeas corpus by Judge John T. Curtin of the
Western District of New York in 1971 by two separate
opinions: (A) one dated June 28, 1971 finding, inter alia,
certain of petitioner’s confessions to have been voluntarily
made, and (B) another dated August 3, 1971 which dis-
missed as without merit petitioner’s claim that the trial
judge improperly charged the jury concerning voluntari-
ness. Although Judge Curtin’s decisions* were made with-
out a hearing, they were based upon the full trial
transcript, appellate briefs, a coram nobis transcript, the
Huntley hearing transcript and the state court judge’s de-
cision thereon. Judge Curtin denied a certificate of prob-
able cause, as did the Second Circuit. The Supreme Court
denied certiorari on December 4, i972.
Although the petition herein is extensive and rambling,
the claims made herein are essentially as follows: (1) that
the Huntley hearing court failed to secure the attendance
of certain witnesses at the Huntley hearing and the assist-
ant district attorney at the Huntley hearing “probably
lied’”* when he stated that a certain witness’ address was
unknown and that he did not know whether that witness
* People v. Lewis, 35 A.D.2d 1086 (1st Dept. 1970).
* United States ex rel. Alfred Lewis v. Mancusi, Civil No. 1970-
322 (W.D.N.Y. 1971).
* Petition, p. 19.
19a
Appendia B.
(one Walsh) was alive or dead; (2) that the trial court
failed to properly charge the jury concerning voluntari-
ness; (3) that petitioner’s confessions were involuntary.
Each of these contentions will be separately considered.
CONTENTION (1):
This contention is explained at pages 18-20 of the petition
and relevant portions thereof are set forth below:
The defendant also moved on January 7, 1970 that
a means be provided to secure the presence to testify
at the (Huntley) hearing of police and F.B.I. person-
nel who the trial record shows were present at the
interrogation and/or confession of the defendant which
were the subjects of the hearing . . ., including Deputy
Inspector Walsh who defendant accused at the trial of
participating directly in the beating of the defendant
. . . and who the trial record establishes actually
took a challenged confession from the defendant which
went to the jury. The defendant was told by the Court
to discuss the matter of the witnesses with counsel who
would endeavor to locate them... .
In the case of Deputy Inspector Walsh, the court
inquired of the assistant district attorney handling the
ease for the People if he intended to call Walsh as a
witness. . . . The assistant district attorney, admitting
that Walsh was present at the defendant’s confession
. answered . . . that Walsh was retired, perhaps
dead and his address and whereabouts unknown, which
statement led the court to make no effort to secure
Walsh’s attendance to teetify at the hearing... .
The defendant’s attorney, although indirectly in-
structed by the Court on Jan. 7, 1970 to make this en-
deavor . . . as already indicated at page 18 hereof,
20a
Appendix B.
refused to try to locate Walsh or the other witnesses
and took the recorded position (Huntley Minutes 24-
27) that they would be hard to locate and that since
they were not called to testify at the original trial they
might not have anything significant to say.
Petitioner does not allege that he ever attempted to actually
subpoena the unnamed witnesses or Walsh. Further, their
materiality to the Huntley hearing is open to question as
they were not called as witnesses upon the original trial and
did not testify. In connection with the witness Walsh, the
petitioner’s sole basis for concluding that the assistant dis-
trict attorney “probably lied” is that he (the petitioner)
claims that he was able to determine at a later date that
Walsh was still alive and living in the New York City
area. Finally, it appears that the witnesses were not called
or located for the purposes of the Huntley hearing because
petitioner’s counsel apparently did not deem them of suffi-
cient importance to the proceeding; the competency of peti-
tioner’s counsel is not before this court in this proceeding.
In my opinion, under the facts disclosed in the petition,
the first contention is without federal or constitutional
merit and will be denied and dismissed.
CONTENTION (2):
Petitioner’s second contention has previously been passed
upon by Judge Curtin and found to be without merit. United
States ex rel. Alfred Lewis v. Mancusi, supra, decision of
August 3, 1971. I am satisfied that the ends of justice do
not require this court to reexamine that determination, and
this contention is also denied and dismissed. 28 U.S.C.
§ 2244(a).
CONTENTION (3):
Initially, petitioner asserts that the “Huntley” court con-
sidered only one of his confessions and failed to determine
2la
Appendiz R.
the voluntariness of two additional confessions made after
the initial confession. This may be so, but it was peti-
tioner’s attorney who requested the “Huntley” court to so
limit its examination. See Petition, at p. 17 fn. 6, and p.
21; and p. 1 of Jndge McCaffrey’s decision on the Huntley
hearing, annexed to the petition. In addition, petitioner
also states that he agreed with this strategy at the time.
See Petition, p. 21. Accordingly, I am of the opinion that
no constitutional violation has been shown.
Petitioner also claims that the “Huntley” hearing judge,
Hon. Edward T. McCaffrey, erred in the standard he util-
ized to determine voluntariness. Petitioner quotes from
the “Huntley” decision as follows:
This court is satisfied beyond a reasonable doubt
that the statements made by defendant to Detective
Beckles and to Detective Corbett, respectively, on the
18th of February 1958 at the 42nd Precinct were volun-
tarily made and were not the result of physical coer-
cion of any kind.
Petitioner claims that the quoted portion of Judge Me-
Caffrey’s decision indicates that he failed to consider the
effect of mental or psychological coercion upon the volun-
tariness of his confessions.
An examination of Judge McCaffrey’s decision on the
“Huntley” hearing reveals its thoroughness and his full
familiarity with the testimony upon petitioner’s trial* as
well as petitioner’s contentions. After the “Huntley” hear-
ing, Judge McCaffrey found petitioner’s statements to be
voluntary and not the result of physical coercion of any
kind. Judge Curtin, after his own review of the full file
in petitioner’s case, found no reason to upset Judge Me-
’ Judge McCaffrey was the trial judge upon petitioner’s trial;
the “Huntley” hearing consisted largely, by petitioner’s and the
People’s consent, of the submission of the trial transcript.
22a
Appendia B.
Caffrey’s determination on the “Huntley” hearing and like-
wise dismissed petitioner’s contentions in connection with
the voluntariness of his confessions.
Simply from the phraseology utilized by Judge McCaf-
frey on his “Huntley” hearing determination, quoted on the
top of this page, and Judge Curtin’s reliance upon the same
in his decision,® I will not presume that both judges were
unaware of and applied the wrong standards to test the
voluntariness of petitioner’s confessions. See 28 U.S.C.
§ 2254(d); La Vallee v. Delle Rose, 410 U.S. 690 (1973) ;
and Townsend v. Sain, 372 U.S. 293, 314-315 (1963). This is
particularly true in view of the fact that, to this court at
least, petitioner relied most heavily upon the alleged physi-
cal coercion to upset the voluntariness of his confession,
vis a vis the claimed mental or phychological coercion.
Accordingly, contention (3) will be also denied and dis-
missed. 7
For the reasons herein, it is ,
~
OrpereD, that the petition herein be and the same hereby
is denied and dismissed. Leave to proceed in forma pau-
peris is granted, and the Clerk is directed to file the papers
herein without the payment of the prescribed fees.
Epmunp Port
United States District Judge
Dated: August 20, 1974
Auburn, New York.
* Petitioner also contends that Judge Curtin applied the incor-
rect standard.
23a
Appendiz B.
UNITED STATES DISTRICT COURT
- Nortuern District or New York
74-CV-
i.
as
Unrrep Srares ex rel. ALrrep Lewis,
Petitioner,
v.
Rosert J. Hznperson, Superintendent of
Auburn Correctional Facility,
Respondent.
Epmunp Port, Judge
ORDER
By Memorandum-Decision and Order dated August 20,
1974, I dismissed the above captioned petition for federal
habeas corpus relief.
I have received on August 21, 1974, additional papers
from the petitioner, sworn to on August 19, 1974, entitled
“Amendment of Petition for Habeas Corpus.’’ These
papers contain nothing, in my opinion, to change this
court’s determination of August 20, 1974. Treating the
papers as a motion for reconsideration, the same is granted,
and upon reconsideration, the original decision is reaf-
firmed and adhered to. The Clerk is directed to file the
papers herein with the other papers in this action.
It is So Ordered.
Epmunp Port
United States District Court Judge
Dated: August 27, 1974.
Auburn, New York.
24a
Appendix C.
UNITED STATIS COURT OF APPEALS
For THE
SECOND CIRCUIT
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the United States Court-
house in the City of New York, on the 3rd day of
November, one thousand nine hundred and seventy-six.
Present:
HonoraBLe WILFRED FEINBERG
Honoraste Water R. MANSFIELD
HonorasBLeE THomas J. Meski.
Cireuit Judges,
No. 76-2093
As.
vv
ALFRED LEwIs,
Petitioner-Appellee,
—against—
Rosert J. HENDERSON,
Respondent-A ppellant.
,™
os
Appeal from the United States District Court for the
Southern District of New York. |
This cause came on to be heard on the transcript of
record from the United States District Court for the
Southern District of New York, and was argued by counsel.
25a
Appendix C.
ON CONSIDERATION WHEREOF, it is now hereby ordered,
adjudged and decreed that the judgment of said District
Court be and it hereby is affirmed on the opinion of Judge
Frankel, dated July 16, 1976.
Wi-rrep FEINBERG
Water R. MansFretp
Txomas J. Meskn
US.C.JJ.
26a
Appendix D.
UNITED STATES of America ex rel.
Alfred LEWIS, Petitioner,
V.
Robert J. HENDERSON, Superintendent,
Auburn Correctional Facility,
Respondent.
No. 76 Civ. 399.
United States District Court, S. D. New York.
July 16, 1976.
State prisoner filed habeas corpus proceeding on basis
that mental and psychological coercion had caused him to
confess. The District Court, Frankel, J., held that bank
robbery suspect’s confessions were obtained in violation
of his due process rights and that it could not be said
beyond reasonable doubt that confessions did. not con-
tribute to his conviction.
Petition granted.
—
Lawrence Stern, Brooklyn, for petitioner.
Louis J. Lefkowitz, Atty. Gen., State of N. } # New
York City, for respondent; Joel Lewittes, David L. Birch,
New York City, of counsel.
OPINION
FRANKEL, District Judge.
Alfred Lewis was convicted of bank robbery, grand
larceny, and assault, after a jury trial in the New York
State courts in 1958.’ He was sentenced to a term of 30
1 All the charges related to the robbery of a branch of the
Manufacturers Trust Company at 155th Street and Third Avenue
in the Bronx at approximately noon on February 6, 1958.
27a
Appendia D.
to 60 years. Since then, he has persistently sought to
have his conviction vacated on the ground, inter alia, that
confessions’ introduced at his trial were the product of
physical and mental coercion. These efforts started when,
pursuant to a pro se coram nobis petition, a Huntley hear-
ing was held in January 1970 by Justice Edward T.
McCaffrey, who had presided at the original trial, to
determine whether the confessions were the product of
unconstitutional coercion. In an opinion dated March 24,
1970, Justice McCaffrey denied the application, finding
that the confessions “were voluntarily made and were not
the result of physical coercion of any kind.’’ The deci-
sion was affirmed without opinion, 35 A.D.2d 1086, 316
N.Y.S.2d 191 (1st Dep’t 1970), and leave to appeal to the
Court of Appeals was denied. A pro se habeas corpus
petition was then filed in the Western District of New
York, again attacking the voluntariness of the confessions.
Judge Curtin, in an unpublished memorandum opinion,
denied the petition by order dated June 28, 1971, on the
ground that the Huntley hearing had adequately deter-
mined the issue. Both Judge Curtin and the Court of
Appeals denied a certificate of probable cause, and the
Supreme Court denied certiorari.
2/There were actually three verbal confessions. The first was
made to a Detective Corbett. Petitioner then repeated the same
admissions before a number of other detectives, with Corbett by
his side. Petitioner recounted his confession a third time before
the District Attorney and a stenographer. All of these confessions
were to the same effect and given within the space of an hour and
a half on the same day. Copies of the recorded confession were
introduced at petitioner’s trial. Detectives Beckles and Corbett
testified concerning the two unrecorded confessions. Petitioner
also asserts that evidence of his leading the police to marked money
from the bank and the money itself constitute a fourth “confes-
sion.” Although this characterization was apparently rejected by
the state judge presiding over the Huntley hearing, it would seem
that the same constitutional claims apply to this evidence as well.
eames
28a
Appendix D.
Still moving pro se (although assisted by a brief of the
Cornell Legal Assistance Project), petitioner filed the
instant petition in the Northern District of New York on
July 17, 1974, raising the voluntariness issue along with
the adequacy of the state court proceeding. The petition
was denied by Judge Port. This time, however, the Court
of Appeals granted a certificate of probable cause, assigned
counsel, reversed “as to the issue of mental and psycholog-
ical coercion”, and remanded for a hearing to resolve the
factual disputes on that issue. United States ex rel. Lewis
y. Henderson, 520 F.2d 896 (2d Cir.), cert. denied, 423 U.S.
was held on April 5, 1976. Having reviewed the evidence,
which is summarized below, and the legal arguments of the
parties, the court concludes that the writ must issue.*
’'The question whether petitioner was beaten, as he continues
to ietie, <pears to have been resolved finally against him by the
decision of the Court of Appeals. Bi wong —— nom
McCaffrey’s finding that poner s -_ ee ae However
i udge McCaffrey made no findings of fact, it is not pe ectly
pm hohe he found that (a) there had been no physical abuse
whatever or (b) whatever abuse there was, if any, did not —_
petitioner to confess. It is at least arguable, then, that it mig
be open to this court to determine whether there were any beatings
and, if so, whether they contributed to petitioner's allegedly =
erced confessions. In the end, however, the court has —
that the issues of physical abuse and physical coercion — —
closed by the Cireuit’s decision and has assumed vy a
was not beaten and that his confession was not physically a
While this bifurcation may effect a small note of unreality,
proved wholly manageable.
4 Before Judge Port, petitioner also raised the argument that
- - ne
trial court had failed to properly charge the Jury coneernin
Oe te The petition was denied on this :
(footnote continued on following page )
29a
Appendix D.
I.
The evidence adduced at this court’s hearing included the
testimony of petitioner and of Dr. Lawrence Lichtenstein,
a psychologist, in support of the petition. Respondent pre-
sented Vincent Beckles and William Corbett, two of the
detectives who questioned petitioner prior to his confes-
sions. Exhibits included the transcript of the Huntley
hearing, where Beckles and Corbett, but not petitioner, also
testified, and the transcript of the trial, which included
testimony of petitioner,’ Beckles and Corbett.
Petitioner's Testimony
At the hearing before this court, petitioner testified as
follows:
He was picked up by the police at approximately 8:30
p.m. on February 17, 1958, and taken to the 30th Precinct,
where he was questioned about some money the police
claimed to have heard he possessed. When asked where he
got the money, he said that he had won it gambling. The
(footnote continued from preceding page)
“Petitioner’s second contention has previously been passed
upon by Judge Curtin and found to be without merit. United
States ex rel. Alfred Lewis v. Mancusi, supra, decision of
August 3, 1971. I am satisfied that the ends of justice do not
require this court to reexamine that determination, and this
contention is also denied and dismissed. 28 U.S.C. § 2244(a).”’
Memorandum Decision and Order of Judge Port, 74 Civ. 366, at 4
(N.D.N.Y. August 20, 1974). The issue was not raised on appeal,
see 520 F.2d at 903, and is not now before this court on remand,
despite some belated attempts by petitioner to raise it in his post-
hearing briefs. In any case, the contention having been twice de-
nied on federal habeas applications, there is no persuasive reason
to consider it again.
5 Petitioner’s trial testimony was limited to the issue of the
voluntariness of his confessions.
ae errrmcorrr—rr—tcrwrorrrerr-S
30a
Appendix D.
questioning started at a desk in a large room. After a few
minutes there, petitioner was taken to a room containing
“nine or ten beds,” where he was seated in a chair. Ini-
tially, an Inspector Walsh asked most of the questions.
Shortly after the interrogations began, @ Detective Cor-
bett came and actively participated in the questioning.
Petitioner refused to tell where the money was, so he was
beaten, primarily by Corbett and Walsh, but also by sev-
eral others, as there were always six to eight, or more,
people in the interrogation room. Later in his testimony,
petitioner also recalled that Inspector Walsh
“asked me if I wanted to call somebody, wanted to
make a telephone call, and I didn’t have this in mind,
although when he said it I immediately thought of
calling my family and I said yes. And he said, ‘Well,
if you cooperate, you can make a telephone call, you
just tell us what we want to know and tell us where
the money is and we’ll let you eall.’ And I*said—when
I said I couldn’t do that, he said, ‘Well, you can’t make
a telephone call.’ ”
Later that night, petitioner was taken to his apartment,
where some of his clothing and personal property were
gathered. He was then returned to the 30th Precinct, where
the police “held an identification session where I was told
to put on various articles of clothing and put on this hat
and that hat, and so forth and stand before a peephole for
identification purposes.” There were several detectives in
the “identification room,” but apparently only petitioner
was placed before the peephole for identification. Peti-
tioner was then taken back to the room with the beds in it,
where he was left for a few hours, although there “was
always someone in the room with me.”
The questioning resumed about 2 or 3 o’clock in the
morning, at which time petitioner was told that he had been
3la
Appendiz D.
positively identified as the robber, and that he should admit
the robbery, cooperate, and produce the money. No one
ever told him that he had been arrested for the robbery,
that he had a right to a lawyer and a right to remain silent,
or that what he said could be used against him in a court
of law. Petitioner continued to be beaten and questioned
throughout the night. He had no food and was permitted
no sleep. He saw detectives with coffee and sandwiches,
“but I never was offered any food.” The interrogations at
0 30th Precinct continued into the morning of February
About noon or 1:00 p.m. on the 18th, petitioner was taken
to the 42d Precinct. Lewis said that he was “tiged....-
weak, ... exhausted, . . . almost beaten...” at the time of
the transfer. At some point, either shortly before or after
being moved, he was told that he was being charged with
an assault. When he got to the 42d Precinct, with Detec-
tive Corbett “running the show,” petitioner was again ques-
tioned by several detectives concerning the location of the
money.
_ One of the detectives—not Corbett—told petitioner that
the assault charge would be dropped if he “cooperated,
confessed and primarily produced the money.”* When he
refused, Corbett and the others started beating him again,
and told him he would stay there until they got the
money. After the beatings had continued for about half
an hour, petitioner “couldn’t . . . keep taking that kind
of stuff” and told Corbett that the money was on a roof
at an unspecified location. Petitioner did not, at this
¢ Petitioner made these remarks regarding the alleged promise :
_ “You know, it is hard to say whether anything like that
is going to have an effect, but I’m just saying this: when
they got a little tougher . . . it is possible that I thought about
that promise ... and perhaps I think they moved me closer
to the disclosure point. I am not saying it did.”
32a
Appendiz D.
time, admit that the money was the bank money, but
did agree to take the police to it.
Petitioner was then left alone for a few minutes in @
detention pen. When Detective Beckles came to take him
to get the money, petitioner refused to go, whereupon
Beckles promised that “if I took him to the money that
my contention that the money was mine as a result of
gambling winnings would not be—you know, would not
be attacked ...’’ Fearing that the police might steal
his money as they had his watch and gloves at the 30th
Precinct,’ Lewis insisted that a Mr. Joey Jones, whom he
had seen in the 42d Precinct, would have to come along
as a witness before he would even consider leading the
police to the money.°
At this point, Beckles left the room and Corbett came
in and told petitioner that he would “be smart to go
along with Beckles, because if you don’t get that money
you are going to answer to me.” Corbett then left the
room. Beckles reentered and informed petitioner that it
had been arranged for Jones to accompany them when
they went for the money.
’ Petitioner claims that the detective who made him empty his
pockets kept his leather gloves and that another officer later con-
fiscated his watch.
* Later, petitioner testified :
“T knew if I didn’t [take them to the money], you know, I
was going to be beaten again, you know, and like some fellow
said, you know, that is the reason I was up there, they was
keeping me there for that purpose ....
And the fact that they had played this game on me, you
led them to the money and got back to the station—got back
to the precinct, you know, they made it clear, you know, that
that was just a sham, you know, this also had an effect on my
condition, you know, on bringing me closer to the point where
I couldn’t resist nothing else, you know.’
33a
Appendix D.
At about 2:00 p.m., petitioner, Jones, Beckles, and Cook,
Beckles’s partner, left to get the money. After the money
had been retrieved and they were driving back, petitioner
asked Detective Beckles for a receipt. Beckles promised
him one when they got to the stationhouse. When they
arrived back at the 42d Precinct at about 3:30 p.m., how-
ever, Corbett took charge again. He threatened that if
petitioner did not shut up about the receipt, “you will
get a receipt in the mouth,” and told him to “come clean
and admit to the robbery now because we’ve got the
money.” Corbett then took petitioner to a room where
Corbett beat him while he was held by another detective.
After this last beating, petitioner confessed to the robbery.
Corbett then took Lewis to a squad room, where In-
spector Walsh, Detective Beckles, and several other police
officers were gathered. In response to their questions,
petitioner gave the answers Corbett had instructed him
to before they entered the squad room. Then, after a
short period of time in the detention pen, petitioner was
taken into another room where he repeated his confession
before an assistant district attorney and a stenographer.
Petitioner was then taken downstairs and put in a cell,
where he remained for the night. At about 10:00 a.m.
on the morning of the 19th, he was arraigned.
Dr. Lichenstein’s Testimony
Dr. Lichenstein, Chief Psychologist at Kings County
Hospital, reviewed and interpreted two reports prepared
at Bellevue Hospital in March and June of 1958 wherein
the description of petitioner said: “Severe Character Dis-
order, Sociopath of the Schizoid Type; a type of individual,
who, under stress and strain, may develop a psychotic epi-
sode in future.’ Dr. Lichenstein testified that a sociopath,
in addition to possessing other maladaptive characteris-
ties, “tends to be rather infantile and immature, has a low
frustration tolerance and [sic] prone to panic under
stress.” He described a psychotic episode as a “breakdown
in ego functioning or & breakdown in the ability to think
clearly . . . usually evi denced in confusion, disorienta-
tion.” In response to & hypothetical question regarding
petitioner’s experiences prior to the confessions,” he con-
eluded that it was more probable than not that petitioner
had a psychotic break under the assumed conditions. He
went on to say that even if petitioner had not experienced
a psychotic episode as such, a person with his diagnosis
would have suffered a weakening in his power to reason
and to resist authority under the described circumstances.
Detective Beckles
Mr. Beckles, called by respondent, gave testimony essen-
tially as follows:
In response to her telephone complaint to the police that
a man had threatened her with a gun, Beckles arrived at
Ms. Elizabeth Waller’s apartment at about 8:30 p.m. on
February 17th. As Beckles and Waller were emerging
from an elevator in the apartment building on their way to
the stationhouse, they encountered petitioner in the hall-
way. Ms. Waller said that this was the man who had
threatened her. Thereupon, Beckles informed petitioner
that Waller had made a compiaint that petitioner had as-
saulted her and that he was taking him to police head-
*“Ts it ible that the individual described in that report,
Doctor, subjected to sudden arrest, 19 hours of enntinuous inter-
rogation overnight without food and sleep, without counsel from
friends or lawyers, or anyone else on his side, subjected to a con-
stant barrage of questioning, interrogation and accusations mixed
in with promises of assistance . . . is it possible that the person
described in that report under those circumstances had a psychotic
break?” The original question contained the additional clause
“and subjected to beatings.” The question, however, was asked a
second time without that clause.
35a
Appendiz D.
quarters. Beckles took petitioner to the Detective Squad
of the 30th Precinct, where he was questioned first about
the alleged assault. Petitioner said that he knew Ms. Waller
because she lived in the same building as his mother, but
denied any assault. :
Detective Beckles, however, had called the 42d Precinct
to have them bring any witnesses who might be able to
identify the robber of the Bronx bank. This action was
prompted by the fact that the complaining witness had
stated that petitioner had given her a bag to keep which
contained a large sum of money and a gun, and that, upon
entering the stationhouse, Beckles had seen fliers relating
to the bank robbery. The witnesses were brought down
between 10 and 11 p.m., perhaps later. Although he did
not take part in the identification proceedings that fol-
lowed, he was informed that the witnesses had identified
petitioner as the bank robber.
After the identification, petitioner was questioned by sev-
eral detectives on and off during the entire night in the
Precinct’s “dormitory room.” Detective Beckles however,
spent only about ten minutes questioning Lewis after he
was identified. When petitioner was not being questioned,
he was left in the squad room where he sat on a chair. De-
tective Beckles offered petitioner food during the evening
at the time he was offering it to other detectives, but peti-
tioner declined the offer. Beckles does not know if pe-
titioner ate or slept that night. Beckles never struck or
beat petitioner.
During the course of the night, petitioner wanted to see
a friend who came to the stationhouse. Beckles does not
recall whether petitioner actually saw him or not. At one
point during the course of the evening, Beckles went out
with petitioner, presumably to get the clothing. Beckles
went out at some other point with other detectives
to search for the bank money in the apartment of a Mr.
36a
Appendix D.
Johnson whose name and address had been obtained from
the address book taken from petitioner at the time of
his arrest.
By morning, the Borough Commander had decided to
turn petitioner over to the 42d Squad on the bank robbery
charge. Beckles drove petitioner to the 42d Precinct.
There, Beckles continued to speak with petitioner, but
did not participate in the interrogation. Beckles told peti-
tioner that if the money was his, he could keep it, but he
did not say petitioner could keep it no matter what. At the
42nd Precinct, Beckles also told petitioner that the police
at that precinct wanted the money, and that he (Beckles)
was going to leave the 42d Precinct and would thereafter
have nothing more to do with the proceedings. Eventually,
Beckles, together with one of his partners, took petitioner
and a friend to retrieve the money.
Detective Corbett
Detective Corbett, the other witness for respondent,
testified that sometime after 10:00 p.m. on the evening of
February 17, 1958, he received a telephone call from his
precinct (the 42d) to the effect that the 30th Precinct was
holding someone that they had reason to believe might be
eonnected with a bank robbery he was investigating. After
determining that the suspect had a space between his two
front teeth,” Corbett called the 42d Squad and told them
that he was going to the 30th Precinct and that they should
arrange for the eyewitnesses to go there too.* Corbett
10 One of the eye-witnesses recalled this feautre after the iden-
tification fliers had been prepared.
11 Corbett later testified that detectives at the 42d Squad had
already instructed the witnesses to go to the 30th Precinct, which
would explain why at least some of the witnesses arrived at the
Precinct between 10:00 and 11 00 p.m. and Corbett not until
shortly before midnight.
37a
Appendiz D.
arrived at the 30th Precinct shortly before midnight, and
then remained all night. Upon his arrival, he was in-
formed that the witnesses who had viewed petitioner had
identified him as the robber.
Corbett had a brief conversation with petitioner that
night, when petitioner accompanied him and other detec-
tives to a residence in Harlem. Apart from that, Corbett
did not interrogate petitioner that evening. During most
of the night, Corbett was not with the higher-ranking 30th
Precinct officers who were questioning petitioner.
As Corbett, Beckles, and Cook were driving petitioner
between the 30th and 42d precincts the next morning, peti-
tioner was questioned further and urged to take the police
to the money. Corbett never told petitioner that he would
be kept at the stationhouse until they got the money and
cannot recall if he ever promised him that he would help
him if he revealed the location of the money. After more
questioning at the Precinct, petitioner agreed to take
Beckles and Cook to the money.
When petitioner returned from getting the money, he
requested, but was not given, a receipt. Instead, Corbett
took him into a bedroom and “convinced him in my way
of thinking, I convinced him that he was really identi-
fied.” Thereupon, without further urging, petitioner
started his confession. After he told the whole story,
Corbett took petitioner to the Squad Commander’s Of-
fice and told him to “tell them now what you told me.”
He never told petitioner what to say. After petitioner
repeated his confession in the squad room, the district
attorney and stenographer were called.
Corbett does not recall that petitioner was ever offered
any food in his presence or that he ever saw petitioner eat
or sleep at either the 30th or 42d Precinct. Corbett testified
that he never beat or struck Lewis. He did not advise
petitioner of his constitutional rights. While he and his
colleagues probably had grounds to arraign petitioner
38a
Appendiz D.
when he was turned over to them on the 18th and before
he led them to the money, he was not arraigned until the
19th because the investigation had not been finished in time
to permit an earlier arraignment.
The testimony given on prior occasions, at trial and at
the Huntley hearing, is essentially cumulative in nature.
Some aspects bear mention, however. Petitioner’s only
prior testimony was at the trial; he did not testify at
the Huntley hearing. At the trial, he testified that, at
one stretch on the evening of the 17th, they left him in
the room with beds for three or four hours. ‘‘Once in a
while one detective would come in; he would leave, and
another detective would also come in. You know, after
the other one had left, and about—I lost track of time—
but about three or four hours later they began question-
ing me.’’ Petitioner stated that ‘twhen like I said one
detective would stay in there fer a while with me, and I
did sort of doze off in a—in the chair, they ‘d wake me up.’’
As for the events at the 42d Precinct, in his trial tes-
timony, petitioner remembered being told that they were
charging him with assault in Manhattan, and that the
charge would be dropped if he took them to the money.
He also said that he confessed “solely because of the
threats and the beating and the lack of food,’’ and that
neither Detective Corbett nor the District Attorney had
promised him anything. Nothing was said about being
denied a telephone call** or about Mr. Beckles’s alleged
promise to accept his gambling earnings story if he took
them to the money.
12 At the hearing, Mr. Lewis explained:
“J didn’t testify to this at the original trial because I didn’t
know the value of this kind of testimony and apparently my
lawyer, who—at the trial, he was not familiar with all the
factors of mental coercion because he didn’t instruct me to
testify in this regard... .”
39a
Appendia D.
Beckles and Corbett testified both at the trial and at the
Huntley hearing. Beckles said nothing at either time
about an offer of food to petitioner. At trial, Corbett
was able to recall that he might have promised to help
petitioner ‘‘a little’? by promising to ‘‘help him if I could
when I got to court if he would co-operate with us.”’
Il.
[1] The stubbornness with which petitioner has pur-
sued his constitutional claims during over 18 years of
confinement was not matched on February 18, 1958, when
he gave in after 19 hours or so and confessed to the bank
robbery. Phrasing the test broadly, petitioner’s confes-
sion violated due process, and was thus inadmissible at
trial, if “the totality of cireumstances’’ leading to the
confession show that it was not ‘‘the product of a ra-
tional intellect and a free will. . . .’’ See Fikes v. Ala-
bama, 352 U.S. 191, 197, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957),
Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274,
280, 4 L.Ed.2d 242 (1960).
The evidence in the now amplified record demonstrates
that petitioner was worn down, that his will was over-
borne, and that he yielded to a combination of fatigue,
despair, and weakness, all produced by his captors and
interrogators. This court would so hold upon the evi-
dence and the record if this were the initial habeas pro-
ceeding. But our inquiry and the grounds of today’s de-
cision have been considerably narrowed by the mandate
of the Court of Appeals. Focusing the general principles
upon the circumstances of this case, that court has di-
rected us to consider six factors touching the voluntari-
ness of petitioner’s confessions. Following that direction,
we are driven compellingly toward the granting of the
writ.
40a
Appendiz D.
[2] The higher Court instructed that six specified alle-
gations, or clusters of allegations, by petitioner would
require issuance of the writ if they could be sustained on
the remand. Finding them to be sustained, or vindicated
so substantially as to permit no other result, we reach
the conclusion the mandate requires.”*
(1) “He was never once, during the whole period of pre-
arraignment interrogation, advised of his right to
remain silent or of his right to counsel.”
This is undisputed. It is, of course, a solid factor favor-
ing petitioner.
(2) “According to Lewis he was arrested on the pre-
tense of Mrs. Waller’s alleged complaint, held for
approximately 38 hours by the police during which
time he was neither booked nor arraigned, and ques-
tioned during most of the first half of this period.”
Although it does not appear that the arrest ofthe peti-
tioner was “on a pretense,” the remainder of the quoted
factor, which is the portion that goes after all to the rele-
vant issue of coercion and deprivation, is solidly estab-
lished by the several records of evidence in this case. It
18 The parties have briefed and argued the somewhat open ques-
tion as to the burden of proof. There is substantial authority
that in circumstances like the onés here, the burden is upon the
State to establish the voluntariness of the confessions. United
States ex rel. Castro v. LaVallee, 282 F.Supp. 718, 722 (S.D.N.Y.
1968); United States ex rel. Smith v. Yeager, 336 F.Supp. 1287,
1301-02 (D.N.J.), affirmed per curiam, 451 F.2d 164 (3d Cir.
1971); United States ex rel. Thurmond v. Mancusi, 275 F.Supp.
508, 520-21 (E.D.N.Y. 1967); United States ex rel. Senk v. Brier-
ley, 363 F.Supp. 51 (M.D.Pa. 1973).
As the record stands, however, there is no need to go nearly
that far. Accepting respondent’s position that the burden is peti-
tioner’s (by a preponderance of the evidence), this court reaches
the findings and conclusions hereinafter outlined.
4la
Appendix D.
is perfectly clear that the petitioner was held in close and
isolated confinement for 38 hours during which he was
neither booked nor arraigned. It is equally clear that he
was questioned “during most of the first half of this pe-
riod.” As one detective told it, petitioner was “questioned
about [the] money all night long”, and he kept “insisting
. . . all along during the night [that it was his money)”,
before he was broken on the following day and submitted to
the will of his interrogators. Such interruptions as there
were served only to accentuate the thoroughness of his sub-
jugation and the futility of any attempt to resist."
The extraordinary delay in arraignment, condemned by
state no less than federal procedural law, was totally de-
void of justification, at least once the night had passed.”°
As is evident from Detective Corbett’s testimony, the de-
lay was for the clear and explicit aim of having the peti-
tioner under total control for the purposes of locating the
money and extracting a confession before he was allowed
access to anyone else or to any of the forms of the law’s
protection. In light of the eye-witness identifications, it is
obvious that the continuing “police interrogation was essen-
14 The interruptions included two, and perhaps three, trips with,
and at the instance of, various detectives. The first was to peti-
tioner’s residence, which the police searched and from which they
“seized” some clothes and other personal belongings. At some
point in the early hours of the morning, detectives searched the
apartments of two of petitioner's friends after obtaining their
names and addresses from petitioner’s address book. It is not
entirely clear whether petitioner accompanied the detectives on
this mission, but he was at least aware that it took place. The
final “diversion” was the trip with Beckles, Cook, and Jones to
Manhattan to retrieve the money. The car ride from the 30th to
the 42d Precinct on the 18th does not qualify as an interruption
because the detectives questioned petitioner throughout.
16 Both detectives Beckles and Corbett testified that they thought
arraignment would have been impossible before the morning of the
18th when the Criminal Court reopened.
42a
Appendiz D.
tially incriminatory rather than merely investigatory i
nature,” United States ex rel. Castro v. LaVallee, 282 F.
Supp. 718, 724 (S.D.N.Y. 1968), and must be condemned as
such. See also Unite’ States ex rel. Montgomery v. Man
cusi, 338 F.Supp. 1247, 1251 (S.D.N.Y. 1972).
(3) “During his extended period of detention before and
after confession, Lewis was not allowed to make any
telephone calls, was not allowed to see anyone and,
with one minor exception, saw and spoke to no one
but the police.”
Again, the record establishes conclusively the proposi-
tions in the quoted statement. The petitioner was com-
pletely walled off during the many hours of his custody.
It was made clear to him that his situation of close and
isolated custody could not be expected to change until he
had done the officers’ bidding. The “minor exception” from
the condition of isolation from friends or family was solely
a bargaining ploy to “encourage” Lewis to lead the police
to the money. Solely for this purpose, they acceded to peti-
tioner’s request that his friend Jones could accompany
them as a kind of witness. So far as that is an “exception”
at all, it is not one that diminishes the impact of peti-
tioner’s totally controlled environment during interroga-
tion.
(4) “Lewis was continuously interrogated throughout
the night of February 17 and on into February 18
on ap intermittent basis without being given any
real opportunity to sleep or any substantial food.”
Once again the record is clear to the point of being sub-
stantially undisputed on this significant set of conditions.
This court has noted earlier the admittedly continuous
character of the interrogation. There is no real question
that the petitioner was deprived of food and sleep, with all
the debilitating consequences of these conditions.
43a
Appendiz D.
Some equivocal intimations that food was brought into
or out of the room where petitioner was held are without
significance for the main point that petitioner was neither
given any food nor given any reason to hope that a request
for it would be effective. Detective Beckles’s testimony at
the hearing that he offered petitioner food at the 30th Pre-
cinct is largely, if not totally, discredited by his failure to
recall this act of benevolence at either the trial or the
Huntle» hearing.
Petitioner testified that he had not slept at all between
the time of his arrest and his confession. None of respond-
ent’s witnesses could contradict his contention. To be sure,
petitioner’s trial testimony that he had been left alone for
three or four hours on the night of the 17th in which he
“dozed off” from time to time, only to be awakened on each
occasion by one of his interrogators, casts doubt on his
broader claim here of total sleep deprivation. However, it
remains clear that petitioner slept very little, if at all, be-
tween the time of his arrest and confession.
In the end, the court finds that petitioner was in fact left
to suffer the pangs of hunger and the impairments caused
by sleeplessness. The effects of such deprivations can only
have impaired his ability to think straight and resist pres-
sure. They weigh heavily in the picture pointing toward
the involuntariness of petitioner’s confession.
(5) “Lewis, at the time of his confession, was a young
22-year old black man of limited education with ap-
parently little prior experience with police methods,
thus rendering him particularly susceptible to police
pressure.”
At age 22, the petitioner was certainly not as young as
some whose names have been identified with confessions
held invalid because their youthful wills were “overborne.”
Nevertheless, the factor just quoted, already Iteld signifi-
\
44a
Appendix D.
cant by the Court of Appeals, remains a substantial one in
the pa We have been repeatedly instructed that “the
process of determining voluntariness involves more than
‘a mere colormatching of cases’. . . .” Mancust v. United
States ex rel. Clayton, 454 F.2d 454, 456 (2d Cir.), cert.
denied, 406 U.S. 977, 92 S.Ct. 2413, 32 L.Ed.2d 677 (1972) ;
Reck v. Pate, 367 U.S. 433, 442, 81 S.Ct. 1541, 6 L.Ed.2d 948
(1961) ; Beecher v. Alabama, 389 U.S. 35, 38, 88 S.Ct. 189,
19 L.Ed.2d 35 (1967). 8
Though he was all of 22, this petitioner was diagnosed
by contemporaneous psychological evaluations as a socio-
path and “a type of individual, who under stress and
strain, [might] develop a psychotic episode in [the] fu-
ture.” Dr. Lichenstein testified that a sociopath “tends to
be rather infantile and immature” and that it was more
probable than not that petitioner “suffer[ed] a psychotic
episode” in the conditions of extended custody and inter-
rogation. While the court does not fully accept Dr. Lichen-
stein’s conclusion, it seems highly likely that petitioner was
relatively young (emotionally and intellectually as well as
chronologically), unstable, and vulnerable at the time he
was interrogated. Such characteristics rendered him par-
ticularly susceptible to police pressure.
It is true, as respondent stresses, that petitioner had al-
ready been imprisoned once for a serious criminal offense,
and was thus no stranger to the forces of the criminal proc-
ess. It does not follow by any means, and the record
does not suggest, that he had significant “prior experience
with police methods.” So far as the law is concerned,
“even a long criminal record” is not sufficient to erase
or overcome such problems of immaturity, ignorance and
simplemindedness as our Court of Appeals identified, and
as the Supreme Court has held important, for decision of
questions like the one now considered. See Davis v.
North Carolina, 384 U.S. 737, 742, 752, 86 S.Ct. 1761,
16 L.Ed.2d 895 (1966).
45a
Appendiz D.
(6) “The police detectives made various promises to pe-
titioner, including an offer to ‘help’ him with his
case if he confessed and a pledge that his claim of
ownership would not be challenged if he would only
retrieve the money.’’
Once more, on this final topic, the proof is ample in
favor of the petitioner. Rationally, in the comfort of the
courthouse or a lawyer’s office, it seems absurd to suppose
that police would have told the petitioner “his claim of
ownership would not be challenged” even if it turned out
that he had robbed the money from a bank. Nevertheless,
the record makes it evident that this is substantially what
the police actually said, and it is even more clear that
this is what they contrived to lead him to believe. Indeed,
the Court of Appeals in its first review of this case
seems to have found from the existing record a promise
by the officers “to accept his claim that the money in the
briefcase was gambling winnings . . ..” 520 F.2d at 899.
It has been evident from the time of petitioner’s trial that
the detectives who interrogated him were quite willing to
lull and pressure him by promises of friendly assistance."
The several records of testimony are replete with specific
promises of “help” in return for a confession. In sum,
the sixth and last of the Court of Appeals standards is
met beyond any serious question.
It follows, as the Court of Appeals said it should, that
petitioner’s “confession was obtained in violation of his
Due Process rights.”
_ %° Typieally, one of the detectives quoted himself as saying:
“Now, you have to put your trust in somebody, and we are the
ones who can help you,” and, the officer continued, “it was right
after that that we sat down and he started to tell me” about hi
commission of the bank robbery.
46a
Appendiz D.
Iii.
The respondent maintains that even if petitioner’s con-
fessions were involuntary, as the court has now held,
their admission at his trial was harmless error. Assum-
ing that the Circuit has not foreclosed this issue by its
mandate,” this court rejects the argument on the merits.
It has been held that the admission of a coerced con-
fession can, in rare circumstances, constitute harmless
error. See United States ex rel. Moore v. Follette, 425
F.2d 925 (2d Cir.), cert. denied, 398 U.S. 966, 90 S.Ct.
9180, 26 L.Ed.2d 550 (1970) (prior untainted confession
also in evidence). This is not such an extraordinary case.
In addition to the involuntary confessions, the evidence
introduced at petitioner’s trial consisted of (1) the testi-
mony and in-court identification by seven eye-witnesses,
(2) the testimony of Elizabeth Waller that Lewis asked
her to store a briefcase for him, which she later learned
contained large amounts of packaged money, (3) a match-
box and sheet of paper upon which petitioner allegedly
made, or directed Ms. Waller to make, computations as
they counted the money contained in the briefcase, (4)
testimony by Beckles and Corbett that petitioner had led
them to approximately $8,000 in eash, including two $5
bills that had been marked by one of the bank tellers,
(5) the money itself, and (6) the testimony of the patrol-
man who found the stolen car allegedly used by petitioner
in the bank robbery.
1 Having concluded that there were unresolved factual issues
as to mental and psychological coercion, the Court of Appeals
remanded for a hearing “([s) ce a state court conviction tainted by
an involun confession cannot stand under the Due Process
Clause. . ..” 520 F.2d at 904. Having failed to raise the question
of harmiess error in the Court of Appeals, the respondent might be
held to have waived the contention.
47a
Appendiz D.
[3, 4] The case against petitioner was strong even with-
out the confessions. But not all of the other evidence was
itself free from taint and other weaknesses. Whether or
not the fact that Lewis led the police to marked money
taken from the bank and the money itself are regarded as
additional ‘‘confessions,’”™* it is clear that they at least
suffer from the same constitutional taint, see Wong Sun v.
United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d
441 (1963), and must be disregarded as independent evi-
dence. The testimony regarding the stolen getaway car
must be discounted because, without petitioner’s confes-
sions, there would have been nothing to link him to the
car. Similarly, while Waller’s testimony and the computa-
tion slips were cirscumstantial evidence the petitioner had
robbed the bank, they did not conclusively establish the
origin of the money since petitioner never told Waller
where he got the cash.
[5] After disregarding the tainted evidence and dis-
counting the evidence otherwise dependent upon the con-
fessions, it is obvious that the court cannot say that
‘‘heyond a reasonable doubt,”’ the confessions ‘‘did not
contribute” to petitioner’s conviction. Chapman v. Calt-
fornia, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
See also United States ex rel. Moore v. Follette, swpra, 425
F.2d at 928. To be sure, the eye-witness identifications,
while not perfect,” were powerful independent evidence of
18 See note 2 supra.
1° After remand, petitioner attempted to inject the further claim
that his conviction was based upon tainted identifications in court
following impermissibly suggestive lineups. If the court were to
reach that issue, it would be resolved against petitioner. While it
appears that the out-of-court identifications were indeed improper,
in light of the witnesses’ degree of certainty and the extensive cross-
(footnote continued on following page)
48a
Appendiz D.
petitioner’s guilt. But nothing is quite so damning as a
defendant’s own admission of guilt. Here, unlike the situ-
ation in United States ex rel. Moore v. Follette, supra, all
of petitioner’s confessions were involuntary. See United
States ex rel. Montgomery v. Mancusi, supra, 338 F.Supp.
at 1252.
In all these circumstances, the court holds that the ad-
mission of the confessions was harmful constitutional
error.
Accordingly, the petition should be, and it is, granted.
Petitioner will be released from custody unless the State
brings his case on for retrial within sixty days.
It is so ordered.
(footnote continued from preceding page)
U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ; Simmons v.
United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247
(1968). However, the out of court deficiencies do diminish to some
degree the evidentiary value of the in-court identifications.
49a
Appendix E.
Opinion of the Supreme Court of Bronx County dated
March 24, 1970 and entered March 31, 1970 denying relief
after a confessions-voluntariness hearing (McCaffrey, J.)
Supreme Court : Bronx County
Trial Term Part XIV
Ind. No. 219-58 Hearing
=
vr
The People of the State of New York
—against—
Alfred Lewis,
Defendant.
’™
ww
McCaffrey, J.:
Defendant was convicted in 1958 following a trial by
jury and thereafter sentenced to a term in State’s Prison.
Pursuant to an order of this Court, he was accorded a
hearing addressed to the issue of the voluntariness or
involuntariness of his confession or confessions introduced
at the trial. At the hearing the People introduced the
trial minutes and rested. Defendant’s attorney requested
the Court to limit perusal of the trial minutes to the tes-
timony of Detectives Beckles and Corbett and the defend-
ant. In response the Court advised that perusal of the
trial minutes would be limited to those pages of testimony
having to do with the voir dire covering the statements
made by defendant to Detectives Beckles and Corbett.
At the trial, Detective Beckles testified that on Febru-
ary 17, 1958 about 8:30 p.m. at an address in New York
County on the complaint of one Elizabeth Waller he took
defendant into custody. During the intervening time
50a
Appendix E.
until the next day about 1 p.m. he was with the defendant
except for a brief period of time. The next day, he,
Detectives Alfano and Corbett and the defendant arrived
at the 42nd Squad (Bronx). At the 42nd Squad he talked
with defendant. Defendant agreed to show where an
amount of money was, claimed by defendant to be pro-
ceeds from gambling. Defendant requested Detective Cook
and a friend (not otherwise identified) of defendant to
accompany them. They left a little after 2 p.m. Locating
the money, they returned to the 42nd Squad. The money
was turned over to Detective Corbett, defendant request-
ing a receipt. Later he overheard defendant in conversa-
tion with Deputy Chief Inspector Walsh, Detective Cor-
bett, Detective Cook and other unnamed detectives and
F.B.I. being present; the time being approximately 3:15
or 3:30 p.m. No officer struck defendant. After the ques-
tioning he returned to the 30th Squad. He did not question
defendant at the 30th Squad about the robbery. He knew
that defendant was questioned but did not recall ‘by whom
As far as knew defendant was not beaten at the 30th
Squad.
At the trial Detective Corbett testified that he did not
question defendant at the 30th Squad. At the 42nd Squad
he interrogated defendant from about 1 p.m. to 2 p.m.
Present were Detectives Beckles and Cook. Then de-
fendant was taken to an address in New York County.
On his return he was questioned by Detective Corbett for
about 10 minutes. He didn’t beat defendant during that
time; didn’t use profanity; made no threats. Then de-
fendant and he went into the room where Deputy Chief
Inspector Walsh, Detectives Beckles and Cook and other
members of the Department and some F.B.I. men were
present. Corbett told defendant to tell them exactly what
he had told Corbett. During the 10 minutes he didn’t
punch defendant in the stomach; molested him in no way;
no hand was laid on any portion of defendant’s body.
5la
Appendiz E.
At the trial on the voir dire defendant testified that at
the 30th Squad he was questioned by Deputy Chief In-
spector Walsh and Detective Corbett about the location
of a sum of money. While held by a couple of detectives,
he was hit in the face, the right and left cheeks and the chin
but not the nose by Corbett, sometimes in the stomach and
groin by Corbett and on the lips by Walsh. After an inter-
val of about 3 or 4 hours, questioning was resumed, and the
Deputy Chief Inspector and some other detectives (not
identified) (Corbett not being present) began beating him
again and making threats and continued until the next
morning. He had no sleep; nothing to eat. Throughout,
he didn’t make any statement other than that he had some
money that was his. The next day he was taken to the
42nd Squad by three detectives including Beckles and
Corbett, arriving about noontime; he had not eaten. Cor-
bett and a couple of other detectives started to beat him
so he told where the sum of money was. Accompanied by
Detectives Beckles and Cook and a friend of his (not
named) he went to the location of the money. On return-
ing to the 42nd Squad another detective was in the room
with Detective Corbett and him. The detective (not iden-
tified) held him while Corbett hit him 3 or 4 times in the
stomach; then a couple more times. He was in the room
about half an hour. Then Corbett took him to another
room where he was questioned by Deputy Chief Inspector
Walsh, Corbett being present. Then he was placed in
a detention cage. He tried to sleep on the floor. He had
nothing to eat except candy bars brought in by a uniformed
officer (at defendant’s request). He had a bowl of soup
after arraignment the morning of the 19th and again shortly
after arrival at the jail, his first solid food in the Bronx
County jail the night of the 19th. At his arraignment in
Magistrates Court he did not mention to the judge that he
had been hit. He told an unnamed corrections officer that
he had been hit by the police. He was not examined by
52a
Appendia E.
a doctor February 19th at the jail. He had red marks on
his stomach. At the first examination by a doctor 4 or
5 days later he had slight red marks. The first time that
he had gone to the doctor was the next day or February
20th. When he was questioned by an Assistant District
Attorney, a stenographer being present, he was not threat-
ened or was he told what to say.
At the trial on the voir dire a Dr. Karpowski testified
that he examined defendant February 19, 1958; the de-
fendant had no complaints; had no pathological findings.
February 20 defendant did not tell that he had been
beaten up on February 17. February 24 defendant com-
plained of indigestion and constipation. A week or two
later defendant complained he had pains in his back; that
he had been beaten. On February 296 defendant com-
plained of pain in the chest and back, claimed to have
resulted from being beaten up on February 17. Exami-
nation revealed no pathological signs. On February 8
defendant complained of pain in the upper lumbar region
and hematuria after alleged beating on February 17. The
hematuria disappeared the following day. The defendant
did not remember whether hematuria occurred more than
once. On admission the complainant did not complain of
hematuria. He abdomen was soft, no tenderness, in the
kidney region. On March 3 defendant complained of pain
in the perineum and epigastrium; there were no objective
findings.
At the hearing defendant elected not to testify but
to rely on his testimony on the voir dire at the trial.
One, Louis Johnson testified in defendant’s behalf
that on Tuesday in February 1958 he saw the defend-
ant in the 30th Precinct in Manhattan; that he was
in a room with defendant for only a few minutes. He
heard defendant in another room in loud conversation.
Later on the same day, he saw defendant in the 42nd Pre-
einct in the Bronx once shortly; then on leaving the
53a
Appendia E.
precinct he saw the defendant lying on the floor. Asked if
there was anything he could do for him, defendant said, no.
He didn’t see any marks on defendant’s body. He saw
defendant pushed and told to shut up and hit in the stom-
ach like, just pushed away like, by one uniformed officer
about i5 or 20 minutes after he had arrived in the 42nd
Precinct. He acknowledged that he was convicted for
policy and convicted for possession of a hypodermic
needle; that he knew defendant about 29 years, considered
himself a friend although he had not seen the defendant in
five years. Joseph Anthony Jones testified in defendant’s
behalf and said that in 1958 he lived in a room adjacent
to the room in which Louis Johnson lived. He, Jones, was
arrested on a Tuesday morning 3 or 4 hours after J ohnson
was arrested. Taken to the 30th Precinct he remained until
1 or 2 p.m., then was taken to the 42nd Precinct in the
Bronx where he remained until 4 or 5 o’clock in the after-
noon. In the 30th Precinct he saw the defendant briefly
once in a quick shuffleby. At the 42nd Precinct he saw the
defendant about four times. He was taken with the de-
fendant to Manhattan and back to retrieve a sum of money.
The first time he saw defendant at the 42nd Precinct was a
good two minutes when he sort of drifted into the room
where defendant was lying on the floor; tried to speak to
him bu. defendant did not respond. The next time he saw
4 or 5 officers who had defendant in a carrying position
straight up, taking defendant in a dragging position to a
room across from where the witness was sitting. The third
time, the defendant was brought to a car where he, Jones,
was already seated and they were taken to Manhattan. The
last time he saw defendant he was lying on the floor of the
cage. He acknowledged prior conviction for petty larceny
six times during the last seven years. Says he knows the
defendant for 20 years and that he had not been requested
to testify at the trial in 1958.
54a
Appendia E.
At the hearing in rebuttal Detective Beckles said that
on February 17, 1958 he was assigned to the 30th Detective
Squad (Manhattan) ; that he arrested defendant approxi-
mately 8:30 p.m. On February 18 he was in the 30th Pre-
einet from 6:30 a.m. until 11:30 a.m. but does not recall
having seen Louis Johnson. About 11:30 a.m. he left the
20th Precinct with Detectives Crobett and Alfano and de-
fendant for the 42nd Precinct (Bronx). At the 42nd he
spoke to defendant for 15 or 30 minutes. During that time
Detectives Cook and Alfano came into the room and left.
No one in his presence beat the defendant, shove him or
lay a hand on the defendant. He himself did not beat,
shove or lay a hand on defendant. Then Detective Cook,
defendant and friend of defendant’s and he went to a
location in Manhattan where $8,000 was recovered, defend-
ant saying it was his money. Returning to the 42nd Pre-
einect about 3:00 or 3:30 p.m. defendant was interrogated
by Detective Corbett. At no time did he see defendant
being hit, shoved or pushed. Defendant was not questioned
by any uniformed patrolman. He does not recall seeing
Louis Johnson at the 42nd Precinct. He says that the de-
fendant was questioned the night of February 17 at the
20th Precinct concerning the robbery. Detective Corbett
also testified in rebuttal and said that on February 18 he
had escorted the defendant, accompanied by Detectives
Beckles and Cook from the 30th Squad to the 42nd Squad.
He does not recall having seen Louis Johnson in the 30th
Precinct. Johnson was not transported from the 30th to
the 42nd Precinct. He, Corbett, did not interrogate the
defendant prior to the 42nd Precinct. At the 42nd, he,
Beckles, and Cok questioned defendant regarding a sum of
money; thereafter the defendant left with Beckles and
Cook. On return, the defendant said “it is my money and I
want a receipt.” As the money was being counted in an-
other room he questioned defendant for about 10 minutes
55a
Appendia E.
in the dormitory. Thereafter, defendant was requested to
relate to Deputy Chief Inspector Walsh what he had told
Corbett; defendant did so and-was at the time asked cer-
tain questions regarding the stickup, which he answered.
Thereafter defendant was questioned by an Assistant Dis-
trict Attorney and his stenographic statement taken. Dur-
ing the time Corbett first arrived at the 30th Precinct until
the defendant was booked, no officer or F.B.I. agent pushed,
shoved or hit or in any way harmed the defendant. Defend-
ant had no marks on his body and at no time was he lying
on the floor of the detention cell. Defendant, on leaving the
30th Precinct, had no difficulty walking; skipped over a
snow bank; his eyes were not bloodshot. Detectives Beckles
and Cook accompanied defendant to recover the money but
he does not recall a third person. He does not know if a
third person was in the squad car at that time.
It is noted that Louis Johnson, with two convictions,
and Joseph Anthony Jones, with six convictions, both
professing to be friends of defendant, claim they were
in the 42nd Precinct on February 18th, saw the defend-
ant and on at least one occasion spoke to defendant;
further, that Jones claims to have accompanied defend-
ant to Manhattan and back in the company of detectives.
From their testimony it is a fair inference that defendant
was aware of Johnson’s and Jones’ presence in the 42nd
Precinct on February 18th. Yet at the trial and during
the voir dire defendant named no names and either did
not give the name or names of professed friends to his
eminent attorney then representing him, or, if he did,
said attorney saw fit not to call upon the two alleged wit-
nesses who now, after almost 12 years, are called upon
by defendant to relate what they allegedly saw on Feb-
ruary 18, 1958.
It is further noted that defendant’s own version on
the voire dire at the trial is in conflict with the testimony
56a
Appendia E.
of Detectives Beckles and Corbett, and Doctor Karpowski
as is the testimony of Louis Johnson and J oseph Anthony
Jones at the hearing. Defendant does not say he com-
plained to the arraigning magistrate or the Assistant
District Attorney, both readily identifiable, but does say
he complained to an unidentified Correction Officer.
This Court is satisfied beyond a reasonable doubt that
the statements made by defendant to Detective Beckles
and to Detective Corbett, respectively, on the 18th of
February 1958 at the 42nd Precinct were voluntarily made
and were not the result of physical coercion of any kind.
Accordingly, the motion is denied. This constitutes the
order and decision on the motion.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.