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.

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