Petition — Thomas Riley v. Gayle Franzen, Director, Illinois Department of Corrections
Supreme Court brief1981
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a
fe. RECEIVED
AUG 27 1981
OrriCt OF THE CLERK
8l1- 5324 _SUPREME COURT, U.S.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1981
No.
UNITED STATES OF AMERICA ex rel. THOMAS RILEY,
Petitioner,
vs.
GAYLE FRANZEN, Director, Illinois Department of Corrections,
and LOU V. BREWER, Warden, Stateville Correctional Center,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS, SEVENTH CIRCUIT
PROFESSOR RALPH RUEBNER
The John Marshall Law School
315 South Plymouth Court
Chicago, Illinois 60604
(312) 427-2737
ATTORNEY FOR PETITIONER,
pro bono publico
Anthony Mavronicolas, Esq.
New York, Wew York
Steven Clark
Deputy Appellate Defender
Chicago, Illinois
OF COUNSEL
QUESTIONS PRESENTED FOR REVIEW
1. Does a 16 year old juvenile who requests to see his parent
during custodial interrogation, as a means of obtaining the services
of an attorney, thereby invoke his constitutional right to counsel
and silence under the Fifth Amendment?
2. Is the confession of Thomas Riley --- a 16 year old juvenile
with an IQ of 57, an 8th grade education, and no significant prior
contact with the police --- voluntary where the shocking facts of the
case establish beyond a reasonable doubt that immediately upon his
arrest for murder he was returned to the scene of the triple homicide,
where he viewed the body of one victim and was subjected to an illegal
identification procedure; strip searched at the jail upon arrival;
manacled to the bars of his cell for two hours clad in underwear,
socks, and a blanket; interrogated for an additional three hours
dressed in the same manner; refused by the police to see his father
who was in the police station; and was urged by his adult brother who
had also been arrested on these charges to take tre “weight” for the
two because he was a juvenile?
TABLE OF CONTENTS
Questions Presented for Review . . . + + + +++ -e+e-s
Table of Contents. ..+«+++se«e-ee-e2ee 2 © © © © 2
Table of Authorities . . .. + +«++-+e+e+ee2+e+ 2 © © «
Bntre@uction « « «seer ere eevee eee ee @ @
Opinions Below and the Manner In Which the Federal
Constitutional Claims Were Raised. . . «+++ «+ « «
Statement of Jurisdiction. . . 2. « «© «© «© © © © © © @ »
Constitutional Provisions Involved . . .. +++ +64 «
Statement of the Case. . . . « «© © © © © © © © © © © »
Reasons for Granting the Writ:
I BY REQUESTING TO SPEAK TO HIS FATHER DURING
CUSTODIAL INTERROGATION, AS A MEANS OF OBTAINING
THE SERVICES OF AN ATTORNEY, THOMAS RILEY, A 16
YEAR OLD JUVENILE, INVOKED HIS RIGHT TO COUNSEL
AND SILENCE UNDER THE FIFTH AMENDMENT. THE
BLATANT REFUSAL BY THE POLICE TO PERMIT THOMAS
RILEY TO SPEAK TO HIS FATHER WHO WAS PRESENT IN
THE POLICE STATION VITIATES HIS CONFESSION. .. .
II MEASURED BY THE TOTALITY OF THE CIRCUMSTANCES
TEST NEITHER THOMAS RILEY'S CONFESSION NOR HIS
WAIVER OF RIGHTS IS VOLUNTARY . . « «© © «© © «© «© «
Conclus ion . . . . . . . . . . . . . . . . . . . . . .
Appendix A
Decision of the United States Court of Appeals,
Seventh Circuit, Riley v. Franzen, 80-2588 (July
10, 1981).
Appendix B
Decision of the District Court, Riley v. Franzen,
79-C-1681 (October 7, 1980).
Appendix C
Stipulations of Facts filed in the District
Court.
ii
PAGE
TABLE OF AUTHORITIES
CASES:
California v. Prysock, U.S. , 29 CrL 4110
(1981). . . . . * . . . * * . . * . . * . . *. . . . .
Chaney v. Wainwright, 561 F. 2d 1129 (5th Cir., 1977) .
Commonwealth v. Cain, 279 N.E. 2d 706 (Mass., 1972) ..
Commonwealth v. Roane, 459 Pa. 389, 329 A. 2d 286
(1974). . * * * . * . . . * . . J . . . . . * . . . .
Fare v. Michael C., 442 U.S. 707 (1979) . 2. .« « « «© « «
Freeman v. Wilcox, 119 Ga. App. 325, 167 S.E. 2d 163
(1969). . * * . . . . . . . * . . .* . * * . . . * . .
Gallegos v. Colorado, 370 U.S. 49 (1962). .......
Haley v. Ohio, 332 U.S. 596 (1948). . «. « «© «© «© «© we @ «
In re Carlo, 48 N.J. 224, 225 A. 24 110 (1966). ....
In re Patrick W., 104 Cal. App. 3d 615, 163 Cal. Rptr.
Lewis v. State, 259 Ind. 431, 288 N.E. 2d 138 (1972). .
Mincey v. Arizona, 437 U.S. 385 (1978). . . .« « «+ «© « «
Miranda v. Arizona, 384 U.S. 436 (1966) . ....e«+«+«-.
People Vv. Riley, 49 Ill. App. 3d 304, 364 N.E. 2d 306
st Dist., 977) . * . . . . * . * . * . * * .* . * .
People v. Saiz, 620 P. 2d 15 (Col., ./80) . ...+.s-s
Rhode Island v. Innis, 446 U.S. 291 (1980). ......
Riley v. Illinois, 435 U.S. 1000 (1978) ......e...
State v. Brooks, 127 Ariz. 130, 618 P. 2d 624 (1980). .
State in Interest of Dino, 359 So. 2d 586 (La., 1978) .
State v. Hunt, 607 P. 2d 297 (Utah, 1980) .....e...
State v. Young, 220 Kan. 541, 552 P. 2d 905 (1976)...
Theriault v. State, 66 Wis. 2d 33, 223 N.W. 2d 850
(1974). . * . * . . *. * . * * J . . * * *. . * .* . * .
United States ex rel. Riley v. Franzen, 79-C-1681 (N.D.
Ill., August 16, 1979) (Unpublished). .....e..
United States ex rel. Riley v. Franzen, 79-C-1681 (N.D.
T1lI., October 7, 1980) (Unpublished). ........
United States ex rel. Riley v. Franzen, 80-2588 (7th
Cir., July 10, 1981) (Not yet published). ......
Walker v. State, 12 Md. App. 684, 280 A. 2d 260 (1971).
iii
PAGE
9
8, 12, 13,
14,
18
10
10
15, 16,
CONSTITUTION
Amendmen S Vv . . al . . * ll . . . . . . . . . . . . . . .
OTHER AUTHORITIES:
Bailey and Soderling, Born to Lose - Waiver of Fifth
and Sixth Amendment Rights by Juvenile Suspects, 16
Clearinghouse Review 127 (1981) ........ee-s.
Comment, Interrogation of Juveniles: The Right to a
Parent's Presence, 77 Dickinson Law Review 543
(1972). . . . . . . . * . . * * . * * * * . . . . . .
Council of Judges of the National Council on Crime
and Delinquency, Model Rules for Juvenile Courts,
Rule 25 (1969) . . * . . * * * . . . . . . . . .* . . .
Ferguson and Douglas, A Study of Juvenile Waiver, 7
San Diego Law Review 39 (1970). . . 2. « « «© «© « we @ «
Ferster and Courtless, The Beginning of Juvenile
Justice, Police Practices, and the Juvenile Offender,
22 Vand. ) Rev. 567 (1969) o . . . . . . . . . . . .
Grisso, Juveniles’ Capacities to Waive Miranda Rights:
An Empirical Analysis, 68 California Law Review 1134
(1980). *. . * . . . * * . . . . . . . * *. * . . . * *
IJA-ABA Juvenile Justice Standards Project, Standards
Relating to Police Handling of Juvenile Problems,
§3.2 (1977) . . . . . * . * . . * * . * . * . * * . .
Vogel, Custodial Interrogation of Juveniles in the
United States and Florida, 9 Florida State University
Law Review 157 (1981) . . . . . . . . . . . . . . . .
iv
PAGE
passim
15
10
ll
16
10
15,
10
10,
16
15
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1981
UNITED STATES OF AMERICA ex rel. THOMAS RILEY,
Petitioner,
vs.
GAYLE FRANZEN, Director, Illinois Department of Corrections,
and LOU V. BREWER, Warden, Stateville Correctional Center,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS, SEVENTH CIRCUIT
INTRODUCTION
TO THE CHIEF JUSTICE OF THE UNITED STATES AND TO THE ASSOCIATE
JUSTICES OF THE SUPREME COURT OF THE UNITED STATES:
May It Please The Court:
Thomas Riley respectfully prays that a writ of certiorari issue
to review the decision of the United States Court of Appeals for the
Seventh Circuit.
OPINIONS BELOW
AND THE MANNER IN WHICH THE FEDERAL CONSTITUTIONAL CLAIMS WERE RAISED
The historical development of the case is adequately set forth
in the opinion of the Seventh Circuit. (Appendix A, pages 2-3)
After a jury trial in the Circuit Court of Cook County, Illinois,
Thomas Riley was convicted of two counts of murder and one count of
involuntary manslaughter. He was sentenced to two concurrent terms of
imprisonment of 75 to 225 years for the murder counts and to a term of
imprisonment of 3 to 10 years for the involuntary manslaughter count,
concurrent with the murder sentence. Prior to trial, Riley unsuc-
cessfully moved to suppress his confession.
His conviction was affirmed by the Illinois Appellate Court,
People v. Riley, 49 Ill. App. 3d 304, 364 N.E. 2d 306 (lst Dist.,
1977). That court also rejected Riley's challenges to the admissi-
bility of his confession. The Illinois Supreme Court denied leave to
appeal, and with Justices Brennan and Marshall dissenting, the
Supreme Court denied certiorari. Riley v. Illinois, 435 U.S. 1000
(1978).
Having exhausted his available state court remedies, Riley filed
a petition for a writ of habeas corpus in the District Court urging
as grounds for relief the two arguments presented here. In an
unpublished decision, the District Court denied the petition without
a hearing. United States ex rel. Riley v. Franzen, 79-C-1681 (N.D.
Ill., August 16, 1979) (McMillen, J.). The United States Court of
Appeals for the Seventh Circuit remanded with instructions to conduct
an evidentiary hearing. After the resultant evidentiary hearing,
Judge McMillen made extensive findings of fact and again denied
habeas relief. United States ex rel. Riley v. Franzen, 79-C-1681
(N.D. Ill., October 7, 1980) (Unpublished Memorandum).
On July 10, 1981 the United States Court of Appeals for the
Seventh Circuit affirmed. United States ex rel. Riley v. Franzen,
80-2588. The opinion is not yet published.
STATEMENT OF JURISDICTION
(i) The petition is timely filed within 60 days of the July 10,
1981 Seventh Circuit opinion.
(ii) There has been no petition for rehearing in the United
States Court of Appeals or request for an extension of time within
which to file this petition.
(iii) Jurisdiction is conferred by Title 28 U.S.C. §1254.
CONSTITUTIONAL PROVISIONS INVOLVED
AMENDMENT V.
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the
Militia, when in actual service in time cof War or
public danger; nor shall any person be subject for
the same offence to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of
law; nor shall private property be taken for public
use, without just compensation.
AMENDMENT XIV.
SECTION 1. All persons born or naturalized in
the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to
any person within its jurisdiction the equal protec-
tion of the laws.
STATEMENT OF THE CASE
The essential facts are no longer in dispute. The most accurate
account of the facts is reported in the opinion of the Seventh
Circuit, Riley v. Franzen, 80-2588 (July i0, 1981) hereinafter
referred to as Appendix A (Appendix A, page ).
Those facts which were omitted in the opinion are included with
appropriate citations, as follows: The unreported decision of the
District Court, Riley v. Franzen, 79-C-1681 (October 7, 1980), is
referred to as Appendix B (Appendix B, page ___)3 the Stipulations of
Facts filed in the District Court as part of the Pre-Hearing
Compliance are referred to as Appendix C (Appendix C, page oe
the transcript of the evidentiary hearing held in the District Court
is referred to as Transcript (Witness' name, Transcript, page |
and the abstract of state trial report of proceedings is designated
as Abstract (A. ___).
At approximately 5:15 p.m. on February 27, 1974, shortly after
the shooting deaths of three young men at the Burr Oak Cemetery in
Alsip, Illinois were reported to the police, Thomas Riley, then age
16, and his brother Ernest, then eighteen years old, were arrested
in connection with the homicides as they hitched a ride in the
vicinity of the cemetery. The brothers initially were stopped by
Officers Pennix and Moore of the Robbins Police Department. (Appendix
A, page 3) Officer Pennix contacted the Alsip Police Department,
which sent a patrol car driven by Alsip Police Officer Scaglione.
Alsip Police Sergeant Rice also was present at the time.
Officer Scaglione drove the two brothers to the Burr Oak
Cemetery. According to Thomas Riley, the drive took approximately
five or ten minutes, during which Officer Scaglione neither advised
the brothers of their Miranda rights nor questioned them. There were
many police officers and police vehicles at the cemetery upon the
brothers’ arrival there. Officer Scaglione parked the squad car
approximately seventy-five feet inside of the cemetery gate. There
the brothers sat inside of the squad car for approximately twenty
minutes. (Appendix A, page 4)
At the cemetery the body of one of the homicide victims, covered
by a blanket, was lying in Thomas Riley's view. He knew what was
there but no coercive reference was made to it by the police. Two
young boys who had originally told the police where the suspects had
fled were brought to the police car, but they were not able to
identify the petitioner or his brother. The petitioner's father and
stepmother had been brought to the cemetery but were not allowed any
contact with him. Riley was not interrogated at the cemetery. He did
not make any statements while there. (Appendix A, page 5)
Thomas Riley and his brother were driven from the cemetery
separately. As Thomas Riley left the cemetery he was given Miranda
warnings by a plainclothes police officer. Riley testified that at
the cemetery he was “scared” and “nervous". He also acknowledged that
he understood the warnings when they were read to him. (Appendix A,
pages 5-6)
Riley arrived at the Alsip police station at approximately 6:00
p.m. (Appendix A, page 6) He was then strip searched. (Scaglione,
Transcript, page 97) His clothes were taken for the purpose of a
laboratory examination. He was permitted to put on his underclothes
and socks. He was given a blanket which he wrapped around his waist.
He was put in a cell next to his brother Ernest, and when they began
conversing between themselves, a police officer handcuffed one hand
of each boy to his respective bunk. This restraint was removed at
or shortly after 8:00 p.m. (Appendix A, page 6)
During this initial two hour period in the police station Riley
overheard the father of one of the victims accost his brother
verbally. Also Riley's brother Ernest, an adult, had told him that
since Thomas Riley was a juvenile, he should take the “weight” if any
charges were made. Ernest Riley, Sr., Thomas’ father, arrived at the
police station at approximately 7:30 p.m. (Appendix A, page 6), at the
suggestion of Attorney Harry Levi. Earlier that evening, Ernest
Riley, Sr. had called his attorney, Mr. Levi, and asked for his
assistance in regard to his sons’ problem. Levi informed him that he
was not a criminal lawyer but suggested that Riley Sr. obtain the
help of another attorney and that he (Riley) should go to the Alsip
police station. (Appendix C, page 5, #23)
At approximately 8:00 p.m. Thomas Riley's handcuffs were removed
and he was given Miranda warnings. Riley replied that the warnings
had been given twice previously. At this time, the interrogation of
Riley was limited to questions concerning his age. (Appendix A, page
7) Thomas Riley first gave his age as 17, but he then told Sergeant
Reed that he was 8 days short of 17. (Appendix B, page 5; Appendix A,
page 6, footnote 9) The police attempted to verify Thomas Riley's
age. His parents incorrectly told the police that he was 17 years
old. (Appendix A, page 7)
Without readministering Miranda warnings, Sergeant Reed again
spoke with Thomas Riley in his cell at approximately 8:30 p.m.
Sergeant Reed told Riley that he would be prosecuted as an adult.
Riley denied knowledge of the crimes, saying that he was looking for
a job at the time of their commission. A neutron activation analysis
was performed on Riley's hand to determine whether he had fired a gun
and he was fingerprinted in an adjacent room. Riley's hand twitched
while the neutron activation analysis was being performed. (Appendix
A, page 7)
Thomas Riley was taken to the office of the Chief of Police for
further questioning at about 9:00 p.m. Miranda warnings were not
readministered. Riley was told that his clothing and hair samples
would be analyzed and of the purpose of the neutron activation ~*
‘“
analysis. The District Court concluded that "[B]Jefore any statement
was given by petitioner, he was told of the various investigative
procedures which were being used and was advised of the evidence
against himself as it was being collected by the police officers.
This procedure was presumably an investigative technique to break
down petitioner's reluctance to confess, but the information was
truthful and unembellished." (Appendix A, page 7)
Despite the denials of Sergeant Reed and Officer Jackson, the
District Court believed Riley's testimony that after he initially
denied having been at the cemetery Riley requested to see his father.
At the evidentiary hearing, Riley made an offer of proof indicating
that he wanted to ask his father to obtain an attorney for him. This
is consistent with Riley's state court testimony. However, during the
interrogation Riley did not in@icate why he wanted to see his father.
After his request was refused, Riley confessed to the homicides.
While doing so, Riley was nervous; his voice cracked; and a tear
appeared in one eye. (Appendix A, pages 7-8)
The principal interrogation officer, Sergeant Reed, told Thomas
Riley prior to confessing that “everybody had a good reason for doing
what they do". (Reed, Transcript, pages 171-172)
After confessing, Riley repeated what he had said in abbreviated
form to his brother Ernest. He also signed a statement which was
transcribed by a court reporter. The taking of that statement was
completed at approximately 11:00 p.m. Following this interrogation
session, Riley was fed a chicken dinner. After midnight he and his
brother were permitted to see their father. (Appendix A, page 8)
Thomas Riley was clad in underpants, a t-shirt, socks and a
blanket throughout the interrogation process. (Appendix C, page 3,
#12) Thomas Riley was manacled to the cell bunk at waist level until
8:00 p.m. (Appendix C, page 3, #11)
At the time of his arrest Thomas Riley was 16 years old. He
dropped out of school in the 8th grade. (Appendix A, page 14) In
1970 he scored 57 in a group IQ test. (Appendix A, page 14) His
academic development was poor. (Appendix C, page 2, #2)
Prior to his arrest on these charges, Thomas Riley did not have
any criminal convictions or juvenile court dispositions. He had had
three prior police stationhouse adjustments, however those encounters
did not involve the recitation of Miranda warnings, interrogation, or
assistance of counsel. (Appendix A, page 14; Appendix C, page 2, #3)
For at least six weeks before his arrest Thomas Riley had lived
with his brother Ernest (Appendix A, page 14), although it was Ernest
Riley, Sr., the father, who had given his sons money to pay for the
rent and food. (Riley, Transcript, page 43)
REASONS WHY CERTIORARI SHOULC BF GRANTED
I BY REQUESTING TO SPEAK TO HIS FATHER DURING CUSTODIAL INTERROGA-
TION, AS A MEANS OF OBTAINING THE SERVICES OF AN ATTORNEY, THOMAS
RILEY, A 16 YEAR OLD JUVENILE, INVOKED HIS RIGHT TO COUNSEL AND
SILENCE UNDER THE FIFTH AMENDMENT. THE BLATANT REFUSAL BY THE
POLICE TO PERMIT THOMAS RILEY TO SPEAK TO HIS FATHER WHO WAS
PRESENT IN THE POLICE STATION VITIATES HIS CONFESSION.
This Court is urged to grant certiorari in order to settle an
important question of law which was left open in Fare v. Michael C.,
442 U.S. 707 (1979), namely, whether a request by a juvenile during
police interrogation to consult with a parent is an invocation of the
juvenile's right to counsel and silence under the Fifth Amendment.
Courts and legal scholars have focused on the diversity of views which
exists today. Therefore the issue is ripe for this Court's
resolution.
In the case at bar the United States Court of Appeals held that
Thomas Riley's request to see his father was neither an explicit
expression of a desire to consult with in attorney (Appendix A, page
10), nor the functional equivalent of a request for an attorney.
(Appendix A, page 11) The Court also concluded that Riley's request
was not an invocation of his right to silence. (Appendix A, page 9)
The Court however acknowledged the importance of parental consultation
during custodial interrogation (Appendix A, pages 10-11), concluding
that parental consultation is not constitutionally required.
(Appendix A, page 11) Instead the Court adopted a “case-by-case”
approach, without any constitutional foundation for the test, as a
method of evaluating whether a particular request for a parent can be
construed as a request for counsel, stating: “we believe that the
proper characterization of such a request depends upon an examination
of the abilities of the parent or guardian requested on the one hand,
wl
and of the accused juvenile on the other. (Appendix A, pages 13-14)
leven under this narrow test Riley should prevail. It was
stipulated to by the parties that prior to his arrival at the Alsip
police station, Mr. Ernest Riley, Sr. telephoned and spoke with
Attorney Karry Levi and asked him for his assistance in regard to his
This newly formed standard is constitutionally defective.
The Seventh Circuit position stands at odds with a growing number
of states which constitutionally permit or require parental consulta-
tion. See e.g.;
New Jersey
(In re Carlo, 48 N.J. 224, 225 A. 2d 110
(1966));
Pennsylvania
(Commonwealth v. Roane, 459 Pa. 389,
329 A. 2d 286 (1974));
Georgia
(Freeman v. Wilcox, 119 Ga. App. 325,
167 S.E. 2d 163 (1969));
Maryland
(Walker v. State, 12 Md. App. 684, 280
A. 2d 260 (1971));
Louisiana
(State in Interest of Dino, 359 So. 2d
586 (La., 1978));
Massachusetts
(Commonwealth v. Cain, 279 N.E. 2d 706
(Mass., 1972));
(footnote continued)
sons' legal problem. Levi informed him that he was not a criminal
attorney and suggested that he obtain the help of another lawyer and
that he (Riley, Sr.) go to the Alsip police station. (Appendix C,
page 5, #23) The Court of Appeals made no mention at all of this
crucial factor.
The District Court stated, but made no finding of its own, that
"[t]he [state] trial court found that the father did not want to see
his son on this subject." (Appendix B, page 5, #6, Abstract, 85-86)
It is noteworthy that the state trial court was not aware of what
efforts Riley, Sr. had made in his attempt to get counsel for his son.
Since the District Court was presented with this additional evidence
by stipulation, but failed to take it into account, it now stands that
Riley, Sr. did indeed want to see his son on this subject. Alter-
natively, it is our position that whether Riley, Sr. wanted to see his
son on this subject or another is immaterial, since the District Court
placed the focus on the wrong party. After all the inquiry should
have been directed at Thomas Riley's perception of his rights in
demanding to see his father, rather than the intent of the parent.
Cf., Rhode Islard v. Innis, 446 U.S. 291, 301 (1980).
Thomas Riley was not “sufficiently independent of his parents” as
the Court of Appeals concludes. (Appendix A, page 14) While Thomas
lived with his brother Ernest, it was the father who gave Er:est and
Thomas money to pay for rent and food. (Riley, Transcript, page 43)
— — “a tee ere err ger _
Indiana
(Lewis v. State, 259 Ind. 431, 288 N.E.
2d 138 (1972));
Colorado
(People v. Saiz, 620 P. 2d 15 (Col.,
1980));
California
(In re Patrick W., 104 Cal. App. 3d
615, 163 Cal. Rptr. 848 (1980)).
A contrary position has been articulated by other states. See e.g.;
Kansas
(State v. Young, 220 Kan. 541, 552 P.
2d 905 (1976));
Wisconsin
(Theriault v. State, 66 Wis. 2d 33, 223
N.W. 2d 850 (1974));
Utah
(State v. Hunt, 607 P. 2d 297 (Utah,
1980)).
The only other Circuit Court of Appeals which has analyzed the
issue is the Fifth Circuit. Its position, however, is ambivalent.
See, Chaney v. Wainwright, 561 F. 2d 1129 (5th Cir., 1977). See also,
Goldberg, J., dissenting. 561 F. 2d at 1133-1135.
Legal scholarship has analyzed the request for parental consulta-
tion both as an invocation of the right to remain silent and as the
functional equivalent of a request for counsel. Ferster and
Courtless, The Beginning of Juvenile Justice, Police Practices, and
the Juvenile Offender, 22 Vand. L. Rev. 567, 596 (1969); Vogel,
Custodial Interrogation of Juveniles in the United States and Florida,
9 Florida State University Law Review 157, 183 (1981); Comment,
Interrogation of Juveniles: The Right to a Parent's Presence, 77
Dickinson Law Review 543, 557 (1972).
Our position is shared by national legal and judicial bodies.
See, IJA-ABA Juvenile Justice Standards Project, Standards Relating to
Police Handling of Juvenile Problems, §3.2 (1977); See also, Council
-10-
OO i ie ~ a a
of Judges of the National Council on Crime and Delinquency, Model
Rules for Juvenile Courts, Rule 25 (1969).
The Court of Appeals reached its conclusion that Thomas Riley's
request for his father was not the functional equivalent of a request
for an attorney relying essentially on two Fare factors: "Riley's
father is not trained in the law. Consequently, he was ‘not ina
position to advise the accused as to his legal rights. Neither is he
a trained advocate, skilled in the representation of the interests of
his client before both police and courts.' Fare, 442 U.S. at 719."
(Appendix A, page 11) These erroneous assumptions cannot be
reconciled with the most recent pronouncement of this Court in
California v. Prysock, U.S. » 29 Cr L 4110 (1981). In Prysock
this Court recognized the value of parental presence during police
interrogation. One useful role parents can serve is to assure the
child's understanding of his right to appointed or retained counsel.
They can further advise the child whether or not they intend to hire
an attorney for the child. If they do not intend to engage counsel,
they can clarify the child's understanding of his constitutional
right to have counsel appointed before police questioning. 29 Cr L
4110, 4111 (1981).
Justices Stevens, Brennan and Marshall, in dissent, noted that
"[a] juvenile informed by police that he has a right to counsel may
understand that right to [mean]...that he has a right to have a lawyer
represent him if he or his parents are able and willing to hire
one..." — U.S. _, 29 Cr L. 4110, 4112.
Thomas Riley understood the Miranda admonitions to mean that he
had the right to secure the services of a lawyer through his father. @
2Thomas Riley testified at the federal evidentiary hearing that
when he was given his Miranda rights, his understanding of "counsel"
was "(i]t meant father to me." (Riley, Transcript, page 41) The
District Court erred in limiting Thomas Riley's testimony in this
regard and then impugn Riley's veracity by his offer of proof. At the
evidentiary hearing counsel asked Thomas Riley why he wished to see
his father. Respondents' objection was sustained. (Transcript, page
36) In his offer of proof Riley said: "I knew that he had a lawyer,
a family lawyer, and I wanted him to get in touch with one, and also
to tell him about what my brother had told me." (Riley, Transcript,
page 38) On Respondents' cross-examination Riley said he wanted to
see his father about what his brother Ernest said to him, viz., that
-ll-
Unlike the juvenile in Prysock, Thomas Riley never spoke to his father
prior to confessing. He was deprived of the opportunity of expressing
to his father his desire for the services of a private attorney and
of learning what his father intended to do for him.
Petitioner respectfully submits that a correct application of the
analysis utilized by this Court in Fare v. Michael C., 442 U.S. 707
(1979), to the circumstances surrounding his interrogation demon-
strates that the Court of Appeals erred. And that by erring in the
manner that it did, with an artificially narrow reading of Fare v.
Michael C., the Court of Appeals has put all juveniles in a precarious
constitutional position.
In Fare v. Michael C., this Court rejected a juvenile's claim
that a request for his probation officer during a custodial interro-
gation was a per se invocation of the Fifth Amendment right to
counsel. The Court pointed out that the role which an attorney might
play at a custodial interrogation, in offering legal assistance to the
juvenile, distinguished attorneys from probation officers, clergymen
and close friends. 442 U.S. 707, 722. However this Court explicitly
omitted any comparisons of the roles of parents and attorneys in Fare.
Thus the only distinction the Court attempted to draw was one between
the functions and duties of attorneys and those of probation officers
vis-a-vis juveniles. In Riley's case, the Court of Appeals erred in
attempting to cast that distinction as a new narrowing of the
principles of Miranda v. Arizona, 384 U.S. 436 (1966).
In the case of a request for a probation officer, this Court
rested its analysis on two points. First, as a peace officer and an
(footnote continued)
he would be treated differently because he was a juvenile. (Riley,
Transcript, page 61) In the state ccurt proceedings, Thomas Riley
testified that he wanted to see his father “because I didn't have
other means of getting in touch with the lawyer." (Abstract, page
48) The District Court rejected the offer of proof “because it is
based upon petitioner's unexpressed mental processes but also because,
even if admissible, the testimony is unreliable and not believable."
(Appendix B, page 8, #12) The District Court stands at odds with the
state trial court who found Thomas Riley's testimony credible.
(Abstract, page 76)
The Court of Appeals correctly found that Riley's offer of proof
is consistent with his state court testimony. (Appendix A, page 8)
-12-
employee of the State, the probation officer faced conflicting duties
which would undermine whatever assistance he could have offered the
juvenile. Fare v. Michael C., 442 U.S. 707, 720. Second, the
probation officer was not in a position to provide the juvenile with
legal assistance. Fare v. Michael C., 442 U.S. 707, 722. Riley's
request to see his father undoubtedly satisfies these two grounds.
He sought his father to obtain through him retained counsel. And
thus, if the interrogating officers had honored his request, Riley
would have received the legal assistance necessary for protecting his
rights during the interrogation. Moreover, the role of Riley's father
was not vitiated by the antagonistic interests which the Court noted
in the probation officer's role. As a proposition of common sense and
daily experience, the exclusive interest of concerned parents is the
welfare of their children. This is virtually axiomatic. Requests for
parents are therefore distinguishable from requests for probation
officers on the basis of the two grounds utilized by the Court in
Fare v. Michael C.. Such a conclusion is undoubtedly consistent with
the Court's omission of parents in the category of persons the Court
was prepared to compare with attorneys, i.e. probation officers,
clergymen and close friends. Consequently, Riley's request for his
father triggered his right to counsel.
With respect to Riley's claim that he had invoked his Fifth
Amendment right to remain silent during his interrogation, the Court
of Appeals concluded that none of the circumstances surrounding the
interrogation warranted a finding that he attempted to assert his
right to remain silent. (Appendix A, page 10) In reaching this con-
clusion, the Court of Appeals relied on Fare v. Michael C., 442 U.S.
707 (1979). Its reliance on Fare is misplaced. This Court in
Fare v. Michael C., 442 U.S. 707, 724 held that a bare request for a
probation officer, “[iJn the absence of further evidence", was not
sufficient evidence upon which to conclude that the request was an
assertion of the juvenile's right to remain silent. Thomas Riley
sought to speak to his father before he made the inculpatory state-
ments which his brother had urged him to make. He was 16 yeors old
with an IQ of 57 and an 8th grade education. He was inexperienced
-13-
with police interrogation m-thods and was subjected to a rather
difficult and highly unusual interrogation procedure.
Presented with these circumstances, the Court of Appeals should
have found that Thomas Riley's request was an assertion of his Fifth
Amendment right to remain silent. Although the Court of Appeals
ignored the principles articulated in Miranda v. Arizona, 384 U.S.
436 (1966), in its summary dispositon of this issue, Miranda is the
seminal case which established the standards this Court applied in
Pare v. Michael C.. The procedures mandated by this Court in Miranda
were specifically aimed at giving suspects resources which were
intended to dispel the coercive environment of custodial interroga-
tions. That a juvenile should turn to a parent waiting out in a
hallway to fend off the inherently coercive atmosphere of a custodial
interrogation is undeniable. Even the District Court characterized
the request as one seeking "moral support" from the parent. (Appendix
B, page 8, #13) Miranda permits a suspect to call for help from
another person. The call for help can appear “in any manner".
Miranda v. Arizona, 384 U.S. 436, 444. A juvenile's request for his
parent is such a call for help. To treat the juveniie's request for
a parent in any other fashion would be an exaltation of form over
substance.
-14-
II MEASURED BY THE TOTALITY OF THE CIRCUMSTANCES TEST NEITHER THOMAS
RILEY'S CONFESSION NOR HIS WAIVER OF RIGHTS IS VOLUNTARY.
This Court is urged to grant certiorari with a view to either
reexamine the efficacy of the totality of the circumstances test as
a measure of juvenile confessions or put some teeth into the standard
to make it constitutionally meaningful.
The United States Court of Appeals for the Seventh Circuit has
made a mockery of the test as a method of inquiry into the lawfulness
of a juvenile's confession in finding Thomas Riley's confession and
waiver of his rights voluntary. (Appendix A, pages 16-18)
In Fare v. Michael C., 442 U.S. 707, 725 (1979), this Court
approved the “totality-of-the-circumstances" test in judging the
voluntariness of the waiver of rights of juveniles during custodial
interrogation, and in Haley v. Ohio, 332 U.S. 596 (1948), and
Gallegos v. Colorado, 370 U.S. 49 (1962), this standard was
previously adopted to judge the: voluntariness of the juvenile's
confession itself.
Either the Fare standard is ineffective, and therefore there may
be a need to reexamine it as some commentators have suggested, 3 or the
courts below have intentionally excluded Thomas Riley from the
“special care" scrutiny to which he is entitled because he stands
convicted of two counts of murder and one count of manslaughter. Cf.,
Mincey v. Arizona, 437 U.S. 385, 389-390 (1978).
The salient facts here speak for themselves. Measured by the
totality of the circumstances test, neither Thomas Riley's waiver of
rights nor his confession is voluntary.
Where the Court of Appeals and the District Court factually
determined that Thomas Riley had requested to see his father but was
not permitted to do so until after he had confessed, and where the
Court of Appeals and the District Court found s~* many relevant factors
3vogel, Custodial Interrogation of Juveniles in the United States
and Florida, 9 Florida State University Law Review 157 (1981); Grisso,
Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis,
68 California Law Review 1134 (1980); Bailey and Soderling, Born to
Lose - Waiver of Fifth and Sixth Amendment Rights by Juvenile
Suspects, 16 Clearinghouse Review 127 (1981).
-15-
which substantiate Thomas Riley's claim that his confession was wrung
from him by unconstitutional means, it follows that the confession ard
waiver of rights are not legally sufficient to withstand the totality
of the circumstances scrutiny. Under such circumstances the
confession must be suppressed. See, State v. Brooks, 127 Ariz. 130,
618 P. 2d 624, 628-629 (1980), opinion by Justice O'Connor. See also,
Fare v. Michael C., 442 U.S. 707, 732-734 (1979), Powell, J.,
dissenting.
&GE
At the time of his arrest, Thomas Riley was 16 years old.
(Appendix A, page 3)
EDUCATION AND INTELLIGENCE
Thomas Riley dropped out of school in the 8th grade. (Appendix
A, page 14)
In 1970 he scored 57 in a group IQ test.4 (Appendix A, page 14)
His academic development was poor. (Appendix C, page 2, #2)
PRIOR EXPERIENCE WITH LAW ENFORCEMENT
Prior to his arrest on these charges, Thomas Riley did not have
any criminal convictions or juvenile court dispositions. He had had
three prior police stationhouse adjustments, however, those encounters
did not involve the recitation of Miranda warnings, interrogation, or
assistance of counsel. (Appendix A, page 14; Appendix C, page 2, #3)
REQUEST TO SEE FATHER
Thomas Riley requested to see his father. His request was
refused. He then confessed. (Appendix A, page 8)
POLICE CONDUCT WAS CALCULATED TO OBTAINING A CONFESSION
Thomas Riley was not allowed to see his father until midnight,
after he had given a confession. (Appendix A, page 8)
Immediately upon his arrest, Thomas Riley was returned to the
4rmpirical studies show that most juveniles are incapable of
knowingly and intelligently waiving their rights during custodial
interrogation. Ferguson and Douglas, A Study of Juvenile Waiver, 7
San bLiego Law Review 39, 54 (1970); Grisso, Juveniles’ Capacities to
Waive Miranda Rights: An Empirical Analysis, 68 California Law Review
1134, 1164-1166 (1980), fin ass that 16 year old juveniles,
particularly with IQ scores below 80, have no greater comprehension
of their rights than the younger juveniles.
-16-
cemetery, the scene of the triple homicide, where he viewed the
covered body of one victim and was subjected to a suggestive show-up
identification procedure. His father and stepmother were not allowed
to see him there. He was "scared" and "nervous". (Appendix A,
pages 4-6)
At the police station he was strip searched on arrival
(Scaglione, Transcript, page 97), manacled to the bars of his cell
for two hours while clad in undershorts, t-shirts, socks and a blanket
wrapped around his waist (Appendix B, page 4, #5), and interrogated
for over three hours "dressed" in the same manner. (Appendix A, pages
6-8)
Thomas Riley overheard Marvin Foster, Sr., the father of one of
the victims, accost his brother, Ernest Riley, verbally in the police
lockup. (Appendix A, page 6)
Before obtaining the confession, police officers told Thomas
Riley what various investigative procedures were being used and what
evidence the police had already collected against him. The District
Court concluded that “this prccedure was presumably an investigative
technique to break down petitioner's reluctance to confess..."
(Appendix B, page 6, #8; Appendix A, page 7)
Prior to confessing Thomas Riley was not readvised of his
Miranda rights. (Appendix A, page 7)
As he confessed Thomas was nervous, a tear appeared in one eye,
and his voice cracked. (Appendix A, page 8)
Riley's hand twitched while a neutron activation test was being
performed on his hand for traces of gun powder. This procedure
preceded the confession. (Appendix A, page 7, footnote 10)
The principal interrogation officer, Sergeant Reed, told Thomas
Riley prior to confessing that "everybody had a good reason for doing
what they do". (Reed, Transcript, pages 171-172)
As Thomas Riley confessed to Sergeant Reed he was “scared and
feeling kind of helpless". (Riley, Transcript, pages 38-39)
PRESSURE BY ERNEST RILEY
Ernest Riley, Thomas’ 18 year old adult brother who was locked up
in an adjacent cell, told him to take the “weight” if any charges were
made against them because Thomas was a juvenile. (Appendix A, page 6)
SUMMARY
The circumstances surrounding Thomas Riley's confession--his
return to the cemetery and viewing the body of one of the victims,
the suggestive identification procedure, the strip search at the
police station, the removal of his cl: thing, the handcuffing to the
cell bars, the refusal by the police to permit him to see his father,
the overbearing investigative pressures, his extremely low intelli-
gence, the lack of prior criminality and experience in police inter-
rogation methods, and more--stand in vivid contrast to those of the
experienced juvenile in Fare v. Michael C., 442 U.S. 707, 726-727.
In Fare Justice Blackmun described as significant the fact that
the juvenile had had considerable experience with the police and had
a record of several arrests, that he was previously confined in a
youth camp and had experience with the probation system, that there
was no evidence of insufficient intelligence, and that the
interrogation method was innocuous. Fare v. Michael C., 442 U.S. 707,
726.
In this case, not only were Thomas Riley's background and
experiences different, but the physical components of his interroga-
tion were also more demanding and unusual. Finally, in light of the
emphasis which Fare v. Michael C. puts on an inexperienced juvenile's
reguest for his parent, 442 U.S. 707, 725, the totality of the cir-
cumstances surrounding Riley's interrogation establishes beyond a
reasonable doubt that his confession and waiver of rights were not
voluntary.
-18-
CONCLUSION
WHEREFORE, Thomas Riley respectfully requests that a writ of
certiorari issue to the United States Court of Appeals for the
Seventh Circuit.
PROFESSOR RALPH RUEBNER
The John Marshall Law School
315 South Plymouth Court
Chicago, Illinois 60604
(312) 427-2737
ATTORNEY FOR PETITIONER,
pro bono publico
Anthony Mavronicolas, Esq.
New York, New York
Steven Clark
Deputy Appellate Defender
Chicago, Illinois
OF COUNSEL
-19-
APPENDIX A
En the
United States Court of Appeals
For the Seventh Cirentt
No. 80-2588
UNITED STATES OF AMERICA ex rel. THOMAS RILEY,
Petitioner-A ppellant,
v.
GAYLE FRANZEN, Director, Illinois Department of Cor-
rections, and Lou V. BREWER, Warden, Stateville Cor-
rectional Center,
Respondents-A ppellees.
Appeal! from the United States District Court for the
Northern District of I!linois, Eastern Division.
No. 79-C-1681—Thomas R. McMillen. Judge.
ARGUED JUNE 15, 1981—Decipep JuLy 10, 1981
Before SwyGert, Senior Circuit Judge,* PELL, and
BAUER, Circuit Judges.
PER CURIAM. Petitioner-appellant Thomas Riley
appeals from a judgment, entered after an evidentiary
hearing, denying his petition for a writ of habeas cor-
pus. Riley argues that for two reasons the district court
erroneously concluded that his confession, ove during
a custodial interrogation, properly was admitted into
evidence at his state court trial. First, Riley asserts that
by requesting to speak with his father during the in-
terrogation he invoked his rights to silence and to the
assistance of counsel, as delineated in Miravda v.
Arizona, 384 U.S. 436 (1966), and that by | to
honor that request the police violated those rights. Riley
also contends that his confession was involuntary. For
the reasons given below, we affirm.
* At the time of oral argument Judge Swygert was a circuit
iudge in active service; on July 1, 1981 he assumed senior
status.
ee
2 No. 80-2588
1.
A
After a jury trial in the Circuit Court of Cook County,
I!linois, Riley was convicted of two counts of murder and
one count of involuntary manslaughter. He was sentenc-
ed to two concurrent terms of imprisonment of 75 to 225
years for the murder counts and to a term of imprison-
ment of 3 to 10 years for the involuntary manslaughter
count, concurrent with the murder sentence. Prior to
trial, Riley unsuccessfully moved to suppress his confes-
sion, presenting, inter alia, the two arguments pressed
in these habeas proceedings.
Riley’s conviction was affirmed by the Illinois
ie ate Court. People v. Riley, 49 Ill. App.3d 304, 364
N_E.2d 306 (Ist Dist. 1977). That court also rejected
Riley's challenges to the admissibility of his confession.
The Illinois Supreme Cour? denied leave to appeal and,
with Justices Brennan and Marshall dissenting, the
Supreme Court denied certiorari. Riley v. Illinow, 435
U.S. 1000 (1978).
Having exhausted his available state court remedies,’
Riley filed a petition for a writ of habeas corpus in the
district court urging as grounds for relief the two
arguments presented here. In an unpublished decision,
the district court denied the petition without a hear-
ing. United States ex rel. Riley v. Franzen, 79-C-1681
(N.D. Hl. August 16, 1979) (McMillen, J.). However, ina
previous appeal, we remanded with instructions to con-
duct an evidentiary hearing.? After the resultant eviden-
1 See 28 U.S.C. § 2254(b).
2 Specifically we stated:
[TJhe district court should conduct a hearing to determine
with as much specificity as possible the historical facts
relating to defendant's arrest, incarceration and subse-
quent confession. In particular, we believe that the district
court should determine whether defendant was returned
to the scene of the killings and, if so, for what purpose and
for how long. It is also significant for the totality of the
circumstances test to determine whether and for how long
(Footnote continued on following page)
No. 80-2588 3
tiary hearing, ~~ McMillen made extensive findings
of fact and again denied habeas relief. United States ex
rel. Riley v. Franzen, 79-C-1681 (N.D. Ill. October 7,
a (Unpublished Memorandum). This appeal follow-
For our purposes the facts re ry : the homicides
themselves are set forth adequately in the opinion of the
Illinois Appellate Court. People v. Riley, 49 Ill. App.3d
at 307. —w those facts will not be restated
here. However, the facts pertinent to our disposition of
Riley’s confession claims must be set forth in some
detail. In this regard we note that Riley does not argue,
nor does it appear, that the district court's findings are
clearly erroneous. However, we have found it necessary
to amplify those findings by utilizing the parties’
stipulations which were submitted to the district court
and by examining the evidentiary hearing transcript
and state court record ourselves.
At approximately 5:15 P=. on February 27, 1974,
shortly after the shooting deaths of three young men at
the Burr Oak rey! in Alsip, Illinois were reported
to the police, Thomas Riley, then eight days short of his
seventeenth birthday, and his brother Ernest, then eigh-
teen years old, were arrested in connection with the
homicides as they hitched a ride in the vicinity of the
cemetery. The brothers initially were stopped by of-
ficers Pennix and Moore of the Robbins Police
2 continued
defendant was manacled to the bars of his cell, how long
defendant was clothed in only his underwear and a
blanket, and whether and when defendant asked to speak
with his father. We do not intend this list to be exhaustive
by any means. The district court should resolve conflicts
in testimony and determine facts necessary to conclude
whether defendant's confession was voluntary.
United States ex rel. Riley v. Franzen, 79-2029, Unpublished
Order at 3 (7th Cir. April 7, 1980).
* No challenge is made to the validity of the arrest, obviating
the need to discuss its circumstances, the bases for probable
cause, and the like.
4 No. 80-2588
Department‘ Officer Pennix contacted the Alsip Police
Department, which sent a patrol car driven by Alsip
Police Officer Scaglione. Alsip Police Sgt. Rice also was
present at this time.
Officer Scaglione drove the two brothers to the Burr
Oak Cemetery.’ According to Riley, the drive took ap-
roximately ive or ten minutes, during which Officer
Senstions neither advised the brothers of their “Miran-
da” rights nor questioned them. There were mar)
lice and police vehicies at the cemetery upon the
Coothers’ arrival there. Officer Scaglione parked the
squad car approximately seventy-five feet inside of the
cemetery gate. There, the brothers sat inside of the
squad car for approximately twenty minutes until they
were taken to the Alsip Police Station. United States ex
rel. Riley v. Franzen, 79-C-1681, Unpublished Decision
at 4, Finding No. 4 (N.D. Il. October 7, 1980)
* According to Riley, upon apprehending them Officer Pen-
nix asked the brothers where the wengens were. The brothers
responded “What weapons?” Then Officer Pennix said, “The
weapons ~ niggers used to kill that guy with.” Evidentia
Hearing Transcript at 15-16 (hereinafter cited as “E.H.”). Of-
ficer Pennix, who is black, denied interrogating the brothers
or referring to them as “niggers.”
The district court made no specific findings on these factuai
issues. In this appeal Riley does not argue that Officer Pen-
nix's interrogation or reference to him as “nigger,” if true,
rendered his confession involuntary. Also, use any
statements made by Riley at this time apparently were not
admitted at trial, we n not determine the propriety of Of-
ficer Pennix's interrogation, if any, of ay | immediately after
he was apprehended. Consequently we leave these factual
issues unresolved.
5 Riley testified that another police officer was in the squad
car on the way to the cemetery. However, Officer Scaglione
testified that he was alone with the two brothers with a se-
cond — car following them to the cemetery. Again, we see
no n to resolve this factual! issue.
* Officer Scaglione testified that Sgt. Rice may have advised
the brothers of their Miranda rights. However, the parties
stipulated that Riley was not given Miranda warnings at the
time of his arrest.
No. 80-2588 5
hereinafter cited as “Decision”); E.H. at 19, 89; see also
tipulations, § 10.’
Essentially two things pertinent to our ray oc-
curred during the brothers’ stay at the cemetery. First
the body of one of the homicide victims covered by a
blanket was lying in Riley’s view. He “knew what was
there but . . . no coercive reference was made to it by
any police officer.” Decision at 3-4, Finding No. 4. Also,
“two young boys who had originally told the police
where the suspects had fled were brought to the police
car but were not able to identifty the petitioner or his
brother. The petitioner’s father and stepmother had
been brought to the cemetery but were not allowed any
contact with the petitioner.” Jd. at 3, Finding No. 3; see
also Stipulations, {12. There is no indication that Riley
was interrogated at the cemetery or made any challeng-
ed statements while there.
Riley and his brother were driven from the cemetery
separately. As Riley left the cemetery he was given
7 The Illinois Appellate Court found that the brothers were
detained at the cemetery for approximately one and a half
hours. People v. Riley, 49 Ill.App.3d at 306. In our previous
order we refused to afford a presumption of correctness under
28 U.S.C. § a to this finding of fact because it was made
by the state appellate court, rather than by the state trial
court. U.S. ex rel. Riley vr. Franzen, 79-2029, Unpublished
Order at 2-3 (7th Cir. April 7, 1980). It is now clear that find-
ings of fact made by a state appellate court must be given
the benefit of the § 2254(d) presumption if the statuto
criteria are satisfied otherwise. See Sumner v. Mata, ...... S.
seseery 101 S.Ct. 764 (1981). Neither party has briefed or argu
the question of the effect of Sumner, which was decided after
the district court's decision on remand in this case, upon this
appeal in general or upon our review of the district court's
finding on this factual issue in particular. However, in light of
the consistency of the evidentiary hearing testimony of both
sides’ witnesses on this issue, Riley's relatively light emphasis
upon the length of time spent at the cemetery while arguing
that his confession was inadmissible, and the fact that no
challenged statements were elicited during the time at the
cemetery, we accept the district court's finding on this factual
issue.
6 No. 80-2588
Miranda warnings by a plainclothes police officer.
Although Riley testified that he was “scared” and “ner-
vous,” cH at 23, he also acknowledged that he un-
derstood the warnings when they were read to him.
Riley arrived at the Alsip police station at ap-
proximately 6:00 p.m.
= clothing was taken for the purpose of a
aboratory examination, but he was_ shortly
thereafter allowed to put on his underclothes and
socks. He was also given a blanket which he
wrapped around his waist.* He was put in a cell
next to his brother Ernest and, when they began
conversing between themselves, a police officer
handcuffed one hand of each boy to his respective
bunk. This did not cause any particular discomfort,
since the boys were able to sit down on their
bunks, but it did prevent them from communicating
further. This restraint was removed at or shortly
after 8:00 p.m.
Decision at 4, Finding No. 5 (footnote added).
During this initial two hour period in the potice sta-
tion Riley overheard the father of one of the victims “ac-
cost the older brother verbally. [The father] did not have
any conversation with the petitioner, however.” Decision
at 6, Finding No. 8. Also, “[Riley’s] older brother Ernest
had told him that since [Riley] was a juvenile, he should
take the ‘weight’ if any charges were made.” Jd. at 5,
Finding No. 7.* —— by father arrived at the police sta-
tion at approximately 7:30 p.m.
* The parties stipulated that Riley “was clad in underpants,
socks and a blanket while being interrogated from 8:00 m.
through 10:55 p.m.” Stipulations, 12. However, Sgt. Reed
uaeee oot he was comfortable in his shirt-sleeves while in
iley’s cell.
® Ry | was in fact about 8 days short of becoming 17
years old, but he had originally told the officers that he was
17. The officers attempted to verify his age as well as they
could and reasonably believed that the petitioner was 17
before they proceeded in the questioning or took any state-
(Footnote continued on following page)
No. 80-2588 7
At approximately 8:00 p.m. Riley’s handcuffs were
removed and he was given Miranda warnings. Riley
replied that the warnings had been given twice
reviously. At this time, the interrogation of Riley was
imited to questions concerning his age.
Without readministering Miranda warnings and hav-
ing been misinformed by Riley’s parents that Riley was
seventeen years old, Sgt. Reed again spoke with Riley in
his cell at approximately 8:30 p.m. Sgt. Reed told Riley
that he would be prosecuted as an adult. Riley denied
knowledge of the crimes, saying that he was looking for
a job at the time of their commission. A neutron activa-
tion analysis was performed on Riley's hand to deter-
mine whether he had fired a gun and he was finger-
printed in an adjacent room."
Riley was taken to the office of the Chief of Police for
further questioning at about 9:00 p.m. Miranda warn-
ings were not readministered. Riley was told that the
clothing and hair samples would be analyzed and of the
purpose of the neutron activation analysis.
[Before any statement was given by petitioner, he
was told of the various ‘nvestigative procedures
which were ae used and was advised of the
evidence against himself as it was being collected
by the police officers. This procedure was pre-
sumably an investigative technique to break down
petitioner's reluctance to confess, but the informa-
tion was truthful and unembellished.
Decision at 6, teeing No. 8." Despite the denials of
Sgt. Reece and Officer Jackson, the district court believ-
* continued
ment.” Decision at 5-6, Finding No. 7. The measures which
the police took in trying to verify Riley's age included in-
quiries to his parents, both of whom told the police that Riley
was seventeen years old.
© Riley's hand twitched while the neutron activation analysis
was being performed.
" At the evidentiary — Ann | Riley testified that Sgt. Reed
commenced the interrogation by telling Riley that his brother
(Footnote continued on following page)
8 No. 80-2588
ed Riley’s testimony that after he initially denied having
been at the cemetery Riley tpgeesien to see his father.'?
At the evidentiary a Riley made an offer of proof
indicating that he wanted to ask his father to obtain an
attorney for him. This is consistent with Riley's state
court testimony. However, during the interrogation
Riley did not indicate why he wanted to see his father.
After his request was refused, Riley confessed to the
homicides. While doing so, Riley was nervous; his voice
cracked; and a tear appeared in one eye.
After confessing, pom f + my = what he had said in
abbreviated form to his brother Ernest. He also signed a
statement which was transcribed by a court reporter.
The taking of that statement was completed at ap-
proximately 11:00 p.m. Following this interrogation ses-
sion, Riley was fed a chicken dinner."® “After midnight
Petitioner] and (his brother] were permitted to see their
ather.” Stipulations, 19.
" continued
Ernest had made a confession identifying Riley as the shooter,
that the neutron activation analysis showed that Riley had
fired a gun and that an eyewitness could prove that Riley had
been at the cemetery. Sgt. Reed denied making these
Statements to Riley, although he did nrerteny 3 telling
Riley that two people of the brothers’ descriptions had been
viewed leaving the cemetery. Officer Jackson, who was in the
office when Sgt. Reed supposedly made these statements, did
not hear them.
In this appeal Riley does not argue that the district court's
findings on this matter are clearly erroneous or incomplete.
We view the court’s findings as having discredited Riley's
testimony in this regard. Consequently, we will assume that
Set. Reed did not make the statements attributed to him by
iley.
2 The state trial and re courts also accepted this as
true. People v. Riley, 49 “= at 310; see also U.S. er rel.
Riley v. Franzen, 79-2029, Unpublished Order at 2.
8 6“[TJhere is no evidence that [Riley] asked for anything or
was intentionally deprived of food as a condition of giving a
statement.” Decision at 7, Finding No. 10.
No. 80-2588 9
Riley maintains that his request for his father was an
invocation of his Fifth Amendment rights to silence and
to counsel, apparently without distinguishing between
these rights. However, the invocation of a defendant's
right to silence may have a different impact on the per-
missibility of subsequent police conduct than the invoca-
tion of his right to counsel. paper Michigan v. Mosely,
423 U.S. 96 ies) (additional questioning of suspect
who had invoked Fifth Amendment privilege permissi-
ble when preceded by “fresh” Miranda warnings and a
significant time lapse), with Edwards v. Arizona, ......
en 101 S.Ct. 1880 (1981) Cntorregation of suspect
who invokes right to counsel impermissible until suspect
confers with counsel, unless he initiates subsequent con-
tact with police). Consequently, the Supreme Court in
Mosely, 423 U.S. at 101, n.7, and this court in Kennedy
v. Fairman, 618 F.2d 1242, 1248 n6 (7th Cir.), cert. dis-
missed, ..... US. ....., 101 S.Ct. 339 (1980), and White vr.
Finkbeiner, 611 F.2d 186, 193 n21 (7th Cir.
1979), vacated and remanded. ..... U.S. ..... (May 26,
1981), have maintained a distinction between a suspect's
Miranda rights to counsel and to remain silent. Thus,
we cannot accept uncritically Riley's characterization of
his request for his father.
First, we conclude that Riley’s request was not an in-
vocation of his right to silence. In Fare v. Michael C.,
442 U.S. 707 (1979), the Court reversed the judgment of
the California Supreme Court which had held that a
juvenile’s request for his presetion officer constituted
an invocation of the defendant's Fifth Amendment
privilege. The Court anaiyaee the request primarily to
determine whether it could be construed as an invocation
of the right to counsel. However, it also rejected the
erpemnent that the request indicated a desire to remain
silent.
[TJhere is nothing inherent in the re uest for a
probation officer that requires us to find that a
jJuvenile’s request to see one necessarily constitutes
“ This aspect of Fare is discussed below.
10 No. 80-2588
an expression of the juvenile’s right to remain
silent. . . . In the absence of further evidence that
the minor intended in the circumstances to invoke
his Fifth Amendment rights by such a r uest, we
decline to attach such overwhe ming significance to
this request.
442 U.S. at 724. Similarly, in this case we see nothing in
the circumstances that warrants a Riley's
request for his father as an invocation of his right
to silence. Consequently, we proceed to consider only
whether that request constituted an invocation of his
right to counsel.
The starting point for our inquiry into whether Riley's
request for his father constituted a request for an at-
aroey is Miranda itself. In that seminal case the Court
stated, inter alia, that during a custodial interrogation
“lif . . . [the defendant) indicates in any manner and at
any stage of the process that he wishes to consult with
an attorney before speaking there can be no question-
ing.” 384 U.S. at 444-45 (emphasis supplied). Plainly,
Riley's request for his father was not an explicit expres-
sion of a desire to consult with an attorney, but because
under Miranda a request for an attorney need not be
clear and unequivocal, White v. Finkbeiner, 611 F 2d at
189 n.13, we must determine whether it reasonably may
be so construed.’* In the circumstances of this case we
find that it may not.
The Court stated in Miranda that “the right to have
counsel present at the interrogation is indispensable to
the protection of the Fifth Amendment privilege ... .”
S. at 469. This recognition of counsel's role in
rotecting a suspect's Fifth “mendment privilege is the
asis for the pertinent as of the Miranda holding.
Fare v. Michael C., 442 US. at 719. Additionally, the
Court acknowledged that a “lawyer's presence helps
guard against overreaching by the police and ensures
that —- ay» actually obtained are accurately
transcri for presentation into evidence.” Fare, 442
% This is the question which Riley pressed in the Supreme
urt in his unsuccessful petition for a writ of certiorari. 435
U.S. 1000 (Brennan and Marshall, dissenting.)
No. 80-2588 11
U.S. at 719 (citing Miranda, 384 U.S. at 470). With
these facets of “the unique role the lawyer plays a
adversary system of criminal justice” in mind, the Court
in Fare determined that a juvenile’s request for his
probation officer did not constitute an invocation of his
right to counsel. Jd.
At least two of the factors relied upon in Fare support
our conclusion that Riley’s request for his father was not
the functional equivalent of a 9 for an attorney.
Riley's father is not trained in the law. Sey he
was “not in a position to advise the accu as to his
legal rights. Neither is he a trained advocate, skilled in
the representation of the interests of his client before
both police and courts.” Fare, 442 U.S. at 719.'*
A third factor present in Fare was the unprivileged
nature of communications between a juvenile and his
probation officer. The parties have not discussed
whether Riley’s communications with his parent would
have been privileged under Illinois law. However, we
have not found any evidence that Illinois recognizes a
arent-child privilege. ease, we doubt whether
iley’s communications with his father, had Riley been
allowed to speak to him in the stationhouse, would have
been privileged because such a privilege did not exist at
common law and courts have n reluctant to create
new privileges, preferring to leave such matters to the
legislature despite any policy reasons supporting
recognition of a particular privilege. E.g., Application of
A and M, 61 A.D.2d 426, 403 N.Y.S.2d 375, 380 (4th
Dept. Ye (declining to recognize parent-child
privilege) (“Surely the thought of the State forcing a
mother and father to reveal their child's misdeeds, as
confessed to them in private, to provide the basis for
criminal charges is shocking to our sense of decency,
fairness, and propriety. In re Kinoy, 326 F. Supp. 400
(S.D.N.Y. 1970) (Frankel, J.) (same); see generally
Wigmore, Evidence, § 2286 (McNaughton Rev. 1961); Mc-
“ Another of the bases for Miranda discussed in Fare—to
insure accurate transcription of the suspect's statements—is
inapplicable here because Riley makes no challenge to the
accuracy of the transcription of his confession.
12 No. 80-2588
Cormick, Evidence, § 77 o ed. 1973); Coburn, Child-
Parent Communications: re the Privilege and Spoil
the Child, 74 Dick. L. v. 599 (1970) (suggesting
Statutory creation of a parent-child privilege).
On the other hand, unlike the probation officer in
Fare, Riley's father is not a state employee duty bound
to report his son's wrongdoing. See Fare, 442 U-S. at
719-720. This probably would be true in most cases. We
believe, however, that the result in Fare is based
primarily upon the Court's analysis of counsel's unique
role in protecting a defendant's Fifth Amendment
privilege and the inability of a probation officer to
satisfy that role. 442 U.S. at 721, 723.” On this basis, we
see no grounds upon which to distinguish the request in
this case from the one at issue in Fare.
While Fare seems to preclude the possibility of ever
construing a juvenile’s request for his probation officer
during a custodial interrogation as an invocation of the
sus 's Miranda right to counsel, we decline to for-
mulate such a broad rule with respect to requests for a
parent or bey The parent-child relationship is ap-
preciably different from that between a juvenile and his
probation officer. A parent may significantly aid a
uvenile in asserting his Fifth Amendment privilege.
he age may be, or be ab‘e to provide, an attorn
for the child." Even a lay parent, unlike a probation of-
ficer, may not encourage the suspect to talk with the
police or feel bound to report any confession which the
child may make in confidence. Indeed, because of these
and other considerations, many states require parental
consultation in order for a juvenile’s confession to be ad-
missible. E.g., People v. Saiz, 620 P.2d 15, 19 (Col. 1980)
" The conclusion that the right to counsel recognized in
Miranda is different than, but inextricably linked to, the
defendant's right to silence is buttressed by the Court's con-
tinued maintenance of the distinction between the Miranda
em to counsel and the Sixth Amendment right to counsel,
which becomes effective — the commencement of for-
-_ a= proceedings. Edwards v. Arizona, 101 S.Ct.
at n.7.
* In this case, apparently Riley’s father unsuccessfully
attempted to obtain a lawyer for his sons.
No. 80-2588 13
(quoting C.R.S. § 19-2-102(3Xc\1) (1973)); Lewis v. State,
259 Ind. 431, 288 N.E.2d 138, 142 (1972); but see State v.
Young, 220 Kan. 541, 552 P.2d 905 (1976); Theriault v.
State, 66 Wis.zd 33, 223 N.W.2d 850, 854 nn. 11, 12
(1974) (collecting cases); People v. Lara, 67 Cal.2d 1365,
62 Cal. Rptr. 586, 432 P.2d 202 (1967) (Jn Bank), cert.
denied, 392 U.S. 945 (1968). While we believe that such
a rule exceeds the requirements of the Constitution, it il-
lustrates the important role that a eoreet may play dur-
ing a custodial interrogation of a child and militates in
favor of the case-by-case approach which we adopt with
respect to requests for a parent.
The only federal case involving this issue which we
have found is Chaney v. Wainwright, 561 F.2d 1129 (5th
Cir. 1977), rehearing en bane denied, 570 F.2d 1391
(1978), cert. denied, 443 U.S. 904 (1979), in which the
Fifth Circuit, with Judge Goldberg dissenting, affirmed
the denial of a habeas petition by a defendant who was
convicted of three murders. It suggests another factor
for our analysis. At the time of his arrest the petitioner
in Chaney was seventeen years and ten months old.
After his arrest and after being given Miranda warn-
ings, the wor did not request an attorney but un-
successfully did uest permission to telephone his
mother. Afterward, made incriminating statements
which were admitted into evidence. In the habeas
proceedings, he unsuccessfully contended that his
statements were inadmissible under Miranda because
his ~ ae for his mother constituted a request for
counsel.
The Chaney court's rejection of the petitioner's conten-
tion was based in part upon its refusal to view the
petitioner as a “child” for purposes of constitutional
analysis. It noted that the petitioner had left home
without saying raw to his mother or truthfully in-
forming her of his plans. Also, the petitioner was
streetwise; he knew he could have an attorney but did
not want one. 561 F.2d at 1131-32. In other words, some
juveniles are capable of independently exercising their
Miranda rights. E.g., United States v. Miller, 453 F 2d
634 (7th Cir.) (per curiam), cert. denied, 406 U.S. 923
(1972) (14 year old.)
14 No. 80-2588
Like the petitioner in Chaney, at the time of his
arrest, for pur of constitutional analysis, Riley cer-
tainly was no “child,” although under state law he was a
juvenile, albeit by a mere eight days. — was suf-
iciently independent of his parents and had sufficient
understanding of his right to counsel that it is
reasonable not to construe his request as one for an at-
torney. For at least six weeks before his arrest Riley had
lived independently of his parents with his brother
Ernest. He had had three previous stationhouse en-
counters with police, although these did not involve the
recitation of Miranda warnings, interrogation, or the
assistance of counsel. Additionally, Riley had quit school
in the eighth grade, another indication of his independ-
ence from his parents. Finally, although Riley had scored
57 in a group IQ test in 1970, he testified that he under-
stood the Miranda warnings when they were read to him.
Thus, Riley knew that he had a right to speak with an at-
torney, and that one would be provided for him free of
charge if he could not afford to hire a lawyer.
Riley relies upon People v. Burton, 6 Cal.3d 375, 99
Cal.Rptr. 1, 491 P.2d 793 (1971) (/n Bank), in which the
California Supreme Court, with one justice dissenting,
held that a sixteen year old’s request for his parents con-
stituted an invocation of his privilege against self-
incrimination. Burton was the basis for the California
Supreme Court's judgment which was reversed in Fare.
As discussed above, under Fare we find that Riley's re-
quest may not reasonably be construed as an invocation
of his Fifth Amendment privilege. For this reason, we
do not find Burton to be persuasive.
To summarize, we do not hold that a juvenille’s request
for a parent or guardian must never be construed as a
request for counsel or as an invocation of his Fifth
Amendment privilege. Rather, we believe that the
proper characterization of such a request depends L
an examination of the abilities of the parent or guardian
requested on the one hand, and of the accused juvenile
on the other. Lay parents must be distinguished from
lawyers, or those with the ability to protect their child's
Fifth Amendment privilege. Independent, older ju-
veniles must be distinguished from younger ones, still
No. 80-2588 15
living with their parents. “If it were otherwise, fary
juvenile’s request for almost anyone he consider
trustworthy enough to give him reliable advice would
trigger the rigid rule of Miranda.” Fare v. Michael Cn
442 U.S. at 723. Also, a request which manifests the
juvenile’s desire to see his parent in order to obtain an
attorney must be treated differently from a request,
such as the one in this case, in which there is no such
manifestation. Finally, a single request should be viewed
differently than repeated requests, especially if the
repetitions are in response to a series of police questions
regarding the crime under investigation. Under some
circumstances, the latter properly may be viewed as an
invocation of the suspect's right to silence. if not of his
right to counsel.
Moreover, because of the special problems associated
with uncounseled confessions by juveniles, In Re Gault,
387 U.S. 1, 55 (1967), it probably is desirable as a
matter of policy for police te consent to a juvenile
suspect's request for his parents or guardian during an
interrogation.'® As discussed above, for this reason some
States either by statute or through case law, poe the
admission into evidence of the confession of a juvenile
whose paren, guardian or attorney was not present
when the child was advised of his rights, when the
waiver decision was made, or both, even if no request
for a parent was made.
Thus, we do not believe that Riley's request for his
father constituted an invocation either of his right to
silence or of his right to counsel. Consequently, the
refusal to comey with that request did not deprive
Riley of his Miranda rights. We also conclude that
Riley's behavior during the interrogation constituted a
valid waiver of his Miranda rights. See Fare v. Michael
C., 442 U.S. at 724-27 (applying hire waiver doctrine
of North Carolina +». Butler, 441 U.S. 369 (1979), to a
juvenile). For these reasons, the admission into evidence
of Riley’s confession was proper under Miranda.
* However, the police in this case apparently had valid
reasons for denying Riley's request. Sgt. Reed mistakenly
believed that my already had seen his father. Also, prior to
iley’s request, Riley's fat r unsuccessfully had attempted to
ae a lawyer and had indicated that he did not wish to see
is sons.
16 No. 80-2588
We also are satisfied that under the familiar totality-
of-the circumstances test Riley’s confession was volun-
tary. In determining the validity of a challenged confes-
sion the “constitutional inquiry is not whether the con-
duct of the state in obtaining the confession was shock-
ing, but whether the confession was ‘free and voluntary
... [Bram v. United States, 168 U.S. 532, 542 (1897)}.
Malloy v. Hogan, 378 U.S. 1, 7 (1964).”
Riley argues that the district court erred in its
application of the “totality” analysis because it failed to
exercise “special care” as required by Gallegos v.
Colorado, 370 U.S. 49 (1962) and Holey v. Ohio, 332 U.S.
596 (1948). More recently, regarding confessions by
juveniles the Court also remarked:
If counsel was not present for some permissible
reason when an admission was obtained, the
greatest care must be taken to assure that the ad-
mission was voluntary, in the sense not only that it
was not coerced or suggested, but also that it was
not the product of ignorance of rights or of adoles-
cent fantasy, fright or des»air.
In Re Gault, 387 U.S. at 55.
We do not view these cases as requiring us to give
nearly dispositive significance to the age of the suspect,
as Riley aqperenty would have us do. The Court's clos-
ing remarks in Gallegos are instructive:
* Because our focus is not on the conduct of the police but
upon its effect upon Riley, we do not place great emphasis
upon the district court's finding that the police had a proper
ourpose for bringing the two brothers to the cemetery—to
wave eyewitnesses view them for an identification. Decision at
3, Finding No. 3. We note that absent exigent circumstances
such a suggestive identification procedure ordinarily is im-
roper and might render a resultant identification inadmissi-
le. See Stoval v. Denno, 388 U.S. 293, 301-302 (1967); see also
Manson v. Brathwaite, 432 U.S. 98 (1977). Because no
identification was made at this time, however, we need not
inquire inte the propriety of this police conduct.
No. 80-2588 17
There is no guide to the decision of cases such as
this, except the totality of circumstances that bear
on the two factors we have mentioned. The youth of
the petitioner, the ~~ detention, the failure to send
for his parents, the failure immediately to bring him
before the judge of the Juvenile Court. the failure to
See to it that he had the advice of a lawyer or a
friend—all these combine to make us conclude that
the formal confession on which this conviction may
have rested (see Payne v. Arkansas, 356 US 560,
568, 2 L ed 2d 975, 981 78 S Ct 844) was obtained in
violation of due process.
370 U.S. at 55.
Also, although the test for establishing a valid waiver of
a suspect's Miranda rights encompasses more than just
voluntariness, Edwards v. Arizona, 101 S.Ct. at 1883-
1884, the Court has found the traditional totality ap-
roach “adequate to determine whether there has been
euch} a waiver even where interrogation of juveniles is
involved.” Fare v. Michael C., 442 US. at 725.
The facts of this case are in stark contrast to those
present in both Gallegos and Haley. In Gallegos the defen-
dant was only fourteen years old, not nearly seventeen
like Riley. Prior to signing his confession he had been in
detention for five days, without his mother being al-
lowed to see him. Here, Riley was detained for only ap-
proximately two hours before his first confession.
Haley is an even more extreme case. There, a fifteen
poor old boy was arrested at midnight and uestioned
y two policemen at a time in relays for five hours and
shown his co-defendants’ confessions before succumbing.
Unlike Riley, he was not advised that he had a right to
an attorney. Nor was he orally advised of his right to
silence, although that information was contain on a
written form which he was shown. Thereafter, the boy
was held incommunicado for five days. 332 U.S. at 598.
Indeed, Justice Douglas in his plurality opinion ob-
served: “What transpired would make us pause for care-
om mqnley if a mature man were involved.” 332 U.S. at
18 No. 80-2588
Here, Riley was not mistreated. When his clothes were
taken from him for testing, a blanket was provided. The
room was not uncomfortably cool. Rather than being
questioned incessantly over a long period immediately
after his arrest, initially Riley was left alone in his cell.
When Riley was questioned, he was familiar with one of
the interrogators because Riley had worked on his car.
As described above, the police did not attempt to exploit
Riley's youth. Rather, they made extensive efforts to
determine whether he was a juvenile, and only proceed-
ed with the interrogation after they reasonably believed
that he was not. Finally, even assuming that Riley was
misinformed that his brother had confessed, as Riley
alleges, that would not render his confession involun-
tary. Frazier v. Cupp, 394 U.S. 731, 739 (1969).
Riley also relies upon United States v. Fowler, 476
F.2d 1091 (7th Cir. 1973). in which we reversed an order
committing a sixteen year old to the custody of the At-
torney General. The defect which we found in Fowler
was that the youth was not adequately advised of his
Miranda rights. 476 F.2d at 1092, n.5. Thus, Fowler
would not support reversal in this case because Riley
acknowledges that he was given adequate Miranda
warnings which he unders ;
Upon consideration of Riley's characteristics, in-
cluding his age and intelligence, and the circumstances
surrounding his confession, we find that although he
justifiably was emotionally upset his confession was
made freely and voluntarily. It was not “the product of
ae of rights or of adolescent fantasy, fright or
espair.” In Re Gault, 387 U.S. at 55.
AFFIRMED.
A true Copy:
Teste:
USCA 4969—Midwest Law Printing Co. Inc.. Chicaguo—7-10-81—350
APPENDIX B
__+ UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF ILLINOIS
° EASTERN DIVISION
Name of Presiding Judge, Honorabie. THOMAS B wewuiey
Cause No._79 ¢ 2682 Dee_OCT, 7, 1980
Tike of Cause .S.A..@x re). RILEY v. FRANZEN et al.
Brie! Statement
ef Moston
The rules of this cour require counse! to furnish the names of al] parties entitled to nouce of
the entry of an order and the names and addresses of thei arorneys. Please do this immed)-
aicly below (separate lists may be appended).
Names and
Addresses of
moving counsel
Represenung
Names and
Addresses of
other counse!
exuued to
pouce and names
of parties they
represent.
s .
a vf Reserve space below for notations by minute clerk
The petition for writ of habeas corpus is
Genied on the basis of the foregoing findings &
conclusions. (Decision attached)
Hand this memorandum to the Clerk.
Counse! wil! mot rise to address the Court unui] motion bas been called.
UNITED STATES DISTRICY COURT
WORTEERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA ex rel. )
THOMAS RILEY, )
)
Petitioner, )
)
Vv. : RO. 79 C 1661
GAYLE FRANZEN, Director, Illinois )
Department of Corrections, and )
LOU V. BREWER, Warden, Stateville )
Penitentiary, .
Respondents. )
DECISION
The petition for writ of habeas corpus in this case was
heard by the court pursuant to an order of the Court of Appeals
entered April 7, 1980 in its case 79-2029. The Court of
Appeals remanded the case “for the purpose of conéuctins a new
evidentiary hearing” on the issue of voluntariness of the
petitioner's confession. That Court specifically reguestec
findings made by the court hearing the witnesses, as distin-
guished from findings by the Illinois Appellate Court, but also
requested a determination of the “historical facts Telating to
petitioner's arrest, incarceration and subsequent cor tession.*
The petitioner alone testified in support, and respondents
Called five police officers and former officers. The parties
also filed a stipulation of facts, contained at pages 1 throush
S of the pretrial compliance, and certain transcripts of testi-
mony taken in the state court, filed in this court on Ausust 8,
1980. Respondents also relied on the foregoing stipulation and
transcripts . Based upon the foregoing evidence, we find the
following scenario occurred:
1. Petitioner and his older brother Ernest were arresteé
at about 5:15 in the afternoon of February 27, 1974 on a high-
way near the boundary of the Burr Oak cemetery in Alsip,
Illinois. A triple slaying had been committed in the cemetery
about an hour earlier. The two suspects were unarmed but the
arresting officers noticed that their shoes and clothing ha¢
mud and cockleburrs on them which appeared to be the same as
was present at the murder scene. Wo issue is raised in the
petition for writ of habeas corpus concerning the propriety
of the arrest.
2. After the two suspects were pickeé up and asked a few
questions by Officer Pennix of the Robbins Police Department,
they were taken to the Alsip police lockup where they were
turned over to that jurisdiction where the murders had occurred.
They were then taken in @ police car to the cemetery by Officer
Scaglione, then of the Alsip Police Department.
3. At the cemetery the petitioner and his older brother
remained in the police car, but petitioner was able to see an
object covered by a blanket. This was the body of one of the
victims. The officer had a proper purpose for bringing the two
suspects to the cemetery for the possibility of an identifica-
tion. As a matter of fact, two young boys who had originally
told the police where the suspects had fled were brought to the
police car but were not able to identify the petitioner or his
brother. Also the petitioner's father and stepmother had been
brought to the cemetery but were not allowed any contact with
the petitioner.
4. The evidence is somewhat conflicting concerning whether
or not the body was in plain view, but petitioner testified that
it was. Be also testified that the officer told him to look at
it, but Officer Scaglione testified to the contrary. In any
event, it is our finding that petitioner was able to see the
blanket covering the body and knew what was there but that no
coercive reference was made to it by any police officer. The
witnesses agree that petitioner and his brother were taken away
from the scene after about 20 minutes.
5S. At the Alsip police station where they arrived shortly
before 6:00 p.m., petitioner's clothing was taken for the pur-
pose of a laboratory examination, but he was shortly thereafter
allowed to put on his underclothes and socks. Be was also
given a blanket which he wrapped around his waist. He was put
in a cell next to his brother Ernest and, when they began con-
versing between themselves, a police officer handcuffed one
hand of each boy to his respective bunk. This did not cause
any particular discomfort, since the boys were able to sit down
on their bunks, but it did prevent them from communicating
further. This restraint was removed at or shortly after 8:00
p-2.
6. Petitioner testified that he was told of his Mirande
rights and that he understood them fully before making any
Statement. It is stipulated that the warnings were given at
approximately @:00 p.m. and again before a written statement
-4-
was taken at 10:15 p.m. Sis only request was to see his father
who had been brought to the police station st about 7:30 p.m.
Be did not request an attorney and did not Gecline to make a
statement. Bis attorney asked him on direct examination why he
wished to see his father, and respondents’ objection to this
question was sustained. The offer of proof indicated that
petitioner wanted to ask his father to get an attorney, anc he
had been allowed to testify in the state court hearing that “I
requested to see my father because I Gidn't have any other
means of getting in touch with the lawyer." (Abstract of
Record p. 48.) Bis father was not allowed to see him until
after he had given a statement, but his father had previously
attempted to obtain an attorney, unsuccessfully. The trial
court found that the father did not want to see his son on this
subdject (Abstract, 85-86).
7. Besides the foregoing, other things occurred prior to
the interrogation which 6id put the petitioner under pressure.
Bis older brother Ernest had told him that, since he was 4
juvenile, he should take the “weight” if any charges were mate.
Petitioner was in fact about 8 days short of becoming 17 years
old, but he bad originally told the officers that he was 17.
The officers attempted to verify his age as well as they could
and reasonably believed that the petitioner was 17 before they
proceeded with questioning or took any statement.
8. Also in the lockup, the father of one of the victims
was allowed to come in and accost the older brother verbally.
Be did not have any conversation with the petitioner, however.
Furthermore, before any statement was given by petitioner, he
was told of the various investigative procedures which were
being used and was advised of the evidence against himself as
it was being collected by the police officers. This procedure
was presumably an investigative technique to break down peti-
tioner'’s reluctance to confess, but the information was truth-
ful anc unembellished.
9. Sergeant John Reed of the Cook County Sheriff's police
testified that he took the statement from the petitioner at
about 9:00 p.m. and that he appeared to be a normal youns
person. However, he testified that petitioner was nervous, that
a tear appeared from one eye, and that his voice cracked when he
gave his statement. Petitioner was not re-adcvised of his
Miranda rights before this statement began, and the hiatus
between the warnings and the statement was for the purpose of
checking petitioner's age.
10. Officer Barry Jackson of the Cook County Sheriff's
police also testified that, when a test was being made on peti-
tioner's hand for traces of gun powder, the hand twitched,
shortly before the petitioner began to make his statement. This
occurred about 9:00 p.m. in the evening, just before the verbal
statement was taken. Petitioner was not given anything to eat
until after he had made his statements although there is no
evidence that he asked for anything or was intentionally de-
prived of food as a condition of giving a statement.
ll. Petitioner himself testified that he was quite scare4
anc nervous when he was taken to the cemetery ané saw the body
(which we find was actually covered by a blanket, contrary to
petitioner's version). He did not testify to any other mani-
festations of pressure resulting either from the handcuffing or
from the lack of clothing or food. Be did mot testify that his
statements were given involuntarily or because of fear or duress.
12. The petitioner's demeanor in court satisfies us that he
was nervous, pe “haps frightened, at that time but that he was
able to think and speak rationally. The principal exception we
find to his credibility is the offer of proof to the effect that
the petitioner would testify that the Purpose for wanting to see
his father was to ask him to obtain a lewyer. We reject this
offer, not only because it is based upon petitioner's unexpressed
mental processes but also because, even if admissible, the
testimony is unreliable and not believable. Petitioner was
advised of his constitutional rights on at least two occasions
and admittedly understood them, including the advice that he
could have a lawyer present at government expense. Be 4id not
request a lawyer and was not entitled to his father's assistance
in order to obtain one. Be waived this right when he gave his
statements. He should not be permitted to retract his waiver by
testimony given on December 12, 1974 in the State court or there-
after.
13. The principal reason for wanting to confer with his
father was, we find, in order to get some kind of moral support
and perhaps to verify his age. However, petitioner was not then
living with his father or stepmother but was living with his
older brother who was supplying most if not all of their support.
Bis older brother had already told the petitioner to implicate
himself if charges were made, hence providing no moral support
for him. We find and conclude that petitioner did not have an
inviolable right to confer with his father, under the principle
of Fare v. Michael C., 442 0.5. 707 (1979). We note that the
saliant historical facts in the foregoing case ere quite sizi-
lar te those in the case at bar and that the Supreme Court
cideé the appeal by use of the record made by the California
juvenile court. This case was decided after the Illinois
appellate court had foreshadowed the same rationale and affirmec
the use of petitioner's statements at trial. (49 Ill. App. 34
304 (lst Dist. 1977).) The Supreme Court indicated that a
16-year old's request to see his probation officer, his parents,
or his coach was not the equivalent of a request for an attorney,
but should be evaluated in the light of the total circumstances.
14. On the remand, and under Fare, the question remains
concerning whether petitioner's tender age resulted in an invol-
untary statement under all the facts and circumstances of this
case. Whether or not he was 16, the police officers treatec him
with circumspection, because they knew there was some question
of petitioner's age. On the other hand, they reasonably believes
that he was 17, ané a youth investigator from the Cook County
Sheriff's police was on hand throughout the events in issue.
Incidentally, Youth Officer Jackson and the petitioner are both
black, but the other officers are white. Mr. Jackson disputes
petitioner's statement that he requested to see his father and
testified that his father 4id not make « Tequest to see the
petitioner. Be also testified that, after the Statement was
given, petitioner's father Teluctantly went into the lockup to
see his two sons.
15. A juvenile has Substantially the same rights and obli-
gations as an adult insofar as receiving Miranda warnings and
making statements are concerned. The fact that petitioner was
under the ace of 17 is merely one of the circumstances to be
weighed in determining the voluntariness of his statements, but
there is no evidence, and petitioner does not contend, that the
pressures to which he was subjected overcame his will or his
intellect. The difference between the two age catesories of
persons is that a younger person is often more susceptible to
suggestion and pressure than an older person. There is no dis-
pute that petitioner was under considerable pressure wher he
gave his statement, and it is logical to assume that a consid-
erable amount of this pressure arose fron the fact that he had
committed # triple homicide. Bis statement and the jury's ver-
Gict establish that petitioner and not his brother fired the gun.
We find and conclude that the pressure was not Overpowerins,
that it was not inflicted upon the petitioner for the purpose
of obtaining an involuntary statement, and that the statement
which he made was in fact woluntary ané with full understanding
of his constitutional rights.
16. We have reconsidered the findings of fact and rulings
of the State trial court judge, his failure to make specific
findings on certain points, and the State appellate court's
findings which were made ab initio. We find and conclude, on
the basis of our own hearing and on the stipulation and addi-
tional evidence presented by the parties at and after the
hearing in this court, that the petitioner's statements were
mot taken in violation of any of his constitutional rights and
were freely and voluntarily made, not the result of duress
imposed upon the petitioner by police officers or by the cir-
cumstances leading up to the statement.
On the basis of the foregoing findings and conclusions,
the petition for writ of habeas corpus is denied.
ENTER:
DATED: Oct. 7, 1980
-ll-
APPENDIX C
UNITED STATES DISTRICT COURT RECEIVep
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION JUL 15 1989
I
ba ppt
UNITED STATES ex rel. Thomas Riley ) yey STATES DiSIMC] tye
"Petitioner, .
—— No. 79-C-1681
GAYLE FRANZEN, etc., et al,
Respondents.
PRE-HEARING COMPLIANCE
Pursuant to a June 13, 1980 pre-hearing order the
parties hereby submit the following: Stipulations of Facts,
Petitioner's additional statement of the facts, Respondents’
additional statement of the facts, a statement of controll-
ing issues of law and authorities for each party, a list
of documents to be offered in evidence, and a list of wit-
nesses for each party.
STIPULATIONS OF FACTS
1. Riley was sixteen years of age at the time
of his arrest; for at least 6 weeks prior to his arrest
he had been living with his brother Ernest Riley, age 18.
2. Riley had an eighth grade education; in 1970
he scored 57 in a group 1.Q. test; his academic develop-
ment was characterized to be poor.
3. Prior to his arrest, Riley did not have any
criminal convictions or juvenile court dispositions; on
3 prior occasions Riley had had police station house adjust-
ments, but they did not involve the recitation of Miranda
warnings, interrogation, or assistance of counsel.
4. Riley was given Miranda warnings at Burr
Oaks Cemetery shortly before being transported to the
Alsip police station; he made no statement at that time.
5. Officer Reed administered Miranda warnings
at the Alsip cell block at approximately 6:00 p.m.; Riley
replied that he had been advised twice previously.
6. Miranda warnings were given prior to the
taking of a recorded statement at approximately 10:15 p.m.
7. Miranda warnings were not administered at
the time of arrest, when Reed questioned Riley in his
cell at approximately 8:30 p.m., or in the Police Chief's
office at approximately 9:00 p.m.
8. Riley remained silent when Miranda warnings
were administered at the cemetery; when Miranda warnings
were given at 8:00 p.m. questions were limited to ascertain-
ing Riley's age.
9. Following his arrest by Robbins Officer
Pennix at about 5:10 p.m. Riley was transported to the
Burr Oaks Cemetery.
10. Riley remained at the cemetery for twenty
minutes; during that time over 100 bystanders gathered
outside the gates of the cemetery.
ll. After Riley was placed in a cell he
was manacled to the bunk at waist level; he remained
manacled until approximately 8:00 p.m. when Officer
Reed removed the cuffs, this being done prior to any
interrogation.
12. Riley's clothing was removed a short time
after his arrival at the station house; he was clad in
underpants, a t-shirt, socks and a blanket while being
interrogated from 8:00 p.m. through 10:55 p.m.
13. At approximately 8:30 p.m., having been
advised by his parents that Piley was 17, Reed again
questioned Riley in his cell; no Miranda warnings were
readministered; Riley was told he would be prosecuted as
an adult; Riley denied knowledge of the crime stating
he was out looking for a job; at this point neutron activa-
tion analysis test was performed on Riley's hands; he was
also fingerprinted in an adjacent room.
14. At approximately 9:00 p.m. Riley was taken
to the Chief's office and interrogated; no Miranda warn-
ings were readministered.
15. At the 9:00 p.m. questioning Riley was told
-his clothing and hair samples would be analyzed.
16. During the 9:00 p.m. interrogation, after
being informed of the purpose of the neutron activation
analysis, Riley's eyes began to tear and his hand was
shaking.
17. A recorded statement was taken from 10:15 -
11:00 p.m.
18. Following the last interrogation, Riley was
fed a chicken dinner.
19. After midnight he and Ernest Riley were
permitted to see their father.
20. Riley's father was seen by officers in the
Alsip police station at various times throughout the
night.
21. The clothing and shoes of the Thomas Riley
and Ernest Riley were taken for evidentiary analysis be-
cause the officers observed mod and cockleburrs on then
similar to the mod and cockleburrs cbserved earlier at
the cemetery.
22. Officer Ben Harvey of the Robbins Police
Department went to the home of Ernest Riley, Sr. at
approximately 5:30 - 6:00 p.m, and escorted mr. Riley
and his wife to the Burr Osks Cemetery. At the cemetery,
_from a distance, Riley observed his sons seated in the
‘back of an Alsip Police Department squadcar; he was not
allowed to go up to the car; he then returned home. Appro-
ximately an hour later Officer Pennix came to Riley Sr.'s
home and gave him the telephone number of the Alsip Police
Station and informed him that his sons were in trouble.
23. If called to testify, Mr. Riley Sr. would
state that he then walked to a Midlothian drug store and
telephoned and spoke with Attorney Harry Levi and asked
for his assistance in regard to his sons’ problem. He
would further testify that Attorney Levi informed him
that he was not a criminal attorney and suggested that
Riley Sr. obtain the help of another lawyer and suggested
that he -Riley- go to the Alsip Police Station.
24. Thomas Riley was neither physically harmed
nor physically threatened with harm by any officer from
the moment of his arrest onward.
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.